[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11225 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 1, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00304-SCB-MAP-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY ANTHONY GOMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 1, 2010)
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Appellant Gregory Anthony Gomes pled guilty to all counts of a three-count
indictment—Count One, conspiracy to possess with intent to distribute fifty grams
or more of cocaine base (“crack”)1; Count Two, distribution of five or more grams
of crack2; Count Three, distribution of fifth grams or more of crack3—and the
district court sentenced him to concurrent prison sentences of 120 months, the
minimum prison terms allowed by law.4 He appeals his sentences, arguing that
they are greater than necessary to achieve the goals of sentencing set out in 18
U.S.C. § 3553(a). Specifically, he contends that the disparity between sentences
for crack cocaine and powder cocaine, resulting in his receiving 10-year
mandatory minimum sentences, is both unreasonable and unwarranted. In support
of his argument, he cites two Supreme Court decisions that permit district courts
to reject the disparity created by the Sentencing Guidelines’ 100:1 crack-to-
powder cocaine ratio. See Spears v. United States, 129 S.Ct. 840, 844, 172
L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169
L.Ed.2d 481 (2007). He notes additionally that the Sentencing Commission’s
policy is to promote sentencing uniformity and that recent legislative proposals,
including the Fair Sentencing Act (”FSA”), Pub.L.No. 111-220, 124 Stat. 2372
1
See 21 U.S.C. § 846.
2
See 21 U.S.C. § 841(a)(1).
3
See 21 U.S.C. § 841(a)(1).
4
See 21 U.S.C. § 841(b)(1)(A)(iii).
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(2010), seek to eliminate the sentencing disparities created by the 100:1 crack-to-
powder cocaine ratio.
Normally, this court reviews the reasonableness of a sentence under a
“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41,
128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). However, this case concerns the
district court’s authority to impose a sentence below the statutory minimum, thus
subjecting the sentence to review de novo. See United States v. Alexander, 609
F.3d 1250, 1253 (11th Cir. 2010) (“We consider de novo . . . the application of law
to sentencing issues.”).
The government notes that appellant may have failed to sufficiently
preserve his objection to the sentences he received, so we would review the
sentence for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.
2005). However, the analysis in this case remains the same under any standard of
review because the district court committed no error, plain or otherwise, in
imposing sentences mandated by statute.
At the time that appellant committed the crimes, 21 U.S.C. § 841 provided
that an individual who distributes or possesses with intent to distribute 50 grams
or more of crack cocaine “shall be sentenced to a term of imprisonment which
may not be less than 10 years.” 21 U.S.C. § 841(b)(1)(A)(iii). “It is well-settled
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that a district court is not authorized to sentence a defendant below the statutory
mandatory minimum unless the government files a substantial assistance motion
pursuant to 18 U.S.C. § 3553(e) or the defendant falls within the safety-valve of
18 U.S.C. § 3553(f).” United States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th
Cir. 2008). A defendant qualifies for the safety-valve exception of § 3553(f) only
if he “does not have more than 1 criminal history point.” 18 U.S.C. § 3553(f)(1).
The Sentencing Guidelines are to be applied in an advisory fashion. United
States v. Booker, 543 U.S. 220, 258-59, 125 S.Ct. 738, 764, 160 L.Ed.2d 621
(2005). However, Booker does not affect the mandatory nature of statutory
minimum sentences. United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.
2007) (“Even after Booker, the district court is bound by the statutory mandatory
minimums.”). In Kimbrough, the Supreme Court held that district courts have
authority to deviate from the 100:1 crack-to-powder ratio in fashioning an
appropriate sentence under § 3553(a) factors. Kimbrough, 552 U.S. at 108, 128
S.Ct. at 574. The Court noted, however, that district courts remain “constrained
by the mandatory minimums” prescribed by Congress. Id.; accord Spears, 555
U.S. ___, 129 S.Ct. at 844 (district court’s determination that a mandatory
minimum sentence was required “moot[ed] any further arguments for a reduced
sentence”).
4
Appellant references the FSA to support his argument that his 10-year
mandatory minimum sentences, arising out of the flawed 100:1 crack-to-powder
cocaine ratio, is unfair and conflicts with 18 U.S.C. § 3553(a). The FSA, signed
into law on August 3, 2010, changes to the crack-to-powder ratio from 100:1 to
about 18:1. See Pub.L.No 111-220, 124 Stat. 2372. The Act amends the
sentencing provisions in 21 U.S.C. § 841(b)(1) by raising from 50 grams to 280
grams the amount of crack necessary to trigger the 10-year mandatory minimum
sentence, and raising the amount from 5 to 28 grams necessary to trigger the 5-
year minimum. Id. § 2(a)(1)-(2).
Section 109 of Title 1 provides in part:
The repeal of any statute shall not have the effect to release or
extinguish any penalty, forfeiture, or liability incurred under such
statute, unless the repealing Act shall so expressly provide, and such
statute shall be treated as still remaining in force for the purpose of
sustaining any proper action or prosecution for the enforcement of such
penalty, forfeiture, or liability.
1 U.S.C. § 109.
Appellant fails to establish that the district court committed any error in
sentencing him to the mandatory minimum. The government did not file a
substantial assistance motion under § 3553(e), and he did not qualify for the
safety-valve exception under § 3553(f). Aside from these two statutory
exceptions, no relevant authority permits a district court to impose a sentence
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below the statutory mandatory minimum. In fact, the court would have committed
reversible error if it had sentenced him to less than 120 months on the three counts
of the indictment. See Castaing-Sosa, 530 F.3d at 1362 (vacating a sentence less
than the mandatory minimum). Moreover, because the FSA took effect in August
2010, after appellant committed his crimes, 1 U.S.C. § 109 bars the Act from
affecting his punishment.
AFFIRMED.
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