USA v. Safarra Kimmons

Filing 511129146

USA v. Safarra Kimmons

Doc. 511129146

Case: 09-60779

Document: 00511129146

Page: 1

Date Filed: 06/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60779 S u m m a r y Calendar June 2, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. S A F A R R A KIMMONS, D e fe n d a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 3:08-CR-112-1

B e fo r e GARZA, CLEMENT and OWEN, Circuit Judges. P E R CURIAM:* S a fa r r a Kimmons pleaded guilty to count one of the indictment charging h im with conspiracy to possess with intent to distribute cocaine base. He was s e n t e n c e d to a term of imprisonment of 240 months and 10 years of supervised r e le a s e . Under 21 U.S.C. § 841(b)(1)(A), Kimmons was subject to an enhanced p e n a lt y of 20 years to life based on his prior conviction in 2002 for distribution o f cocaine base.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Date Filed: 06/02/2010

K im m o n s argues that his 20-year sentence is unreasonably harsh. He r e c o g n iz e s that the district court was within its authority to impose a 20-year s e n t e n c e , but he urges this court to set new precedent and remand the case to t h e district court for resentencing. He notes the disparity in sentencing due to t h e crack/powder ratio and that further amendments to the crack cocaine s e n t e n c in g structure are under consideration in Congress. He argues that as a r e s u lt of this disparity, his sentence was unreasonable. N o authority is cited by Kimmons by which this court could "set new p r e c e d e n t ." See United States v. Conroy, 567 F.3d 174, 181-82 (5th Cir. 2009). T h e most recent Supreme Court authority supports the district court's im p o s i t io n of the mandatory minimum sentence despite the recent amendments t o the Guidelines which reduced the crack/powder disparity. In United States v . Kimbrough, 552 U.S. 85, 107 (2007), the Supreme Court stated that " s e n t e n c in g courts remain bound by the mandatory minimum sentences p r e s c r ib e d in the 1986 Act." If a district court is bound by the mandatory m in im u m and cannot vary below it, then imposing the mandatory minimum is n o t unreasonable or an abuse of discretion. See Gall v. U.S., 552 U.S. 38, 51 (2 0 0 7 ). I n a related argument, Kimmons argues that the imposition of a 20-year s e n t e n c e violated the Eighth Amendment guarantee against cruel and unusual p u n is h m e n t. He argues that his 20-year sentence was objectively unreasonable a n d arbitrary. He notes that the district court judge was sympathetic to his a r g u m e n t for a lower sentence if he had not been constrained by the mandatory m in im u m . He contends that this is the best objective indication that a 20-year s e n t e n c e in this case constitutes cruel and unusual punishment and should be d e c la r e d unconstitutional as applied. He acknowledges that he did not raise this a r g u m e n t in the district court. T o the extent that Kimmons's argument is based on the crack/powder d is p a r ity , it is foreclosed. See United States v. Fisher, 22 F.3d 574, 579 (5th Cir. 2

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199 4).

To the extent that Kimmons argues that the 240-month sentence

m a n d a t e d by § 841(b)(1)(A) constitutes cruel and unusual punishment as applied to him, this argument fails. See Harmelin v. Michigan, 501 U.S. 957, 994-95 ( 1 9 9 1 ) (mandatory life sentence for one drug conviction with no prior felony c o n v i ct io n s not cruel and unusual punishment). The district court did not

p la in ly err in imposing a sentence of 240 months. See Puckett v. United States, 1 2 9 S. Ct. 1423, 1428-29 (2009). A ls o argued by Kimmons is that imposition of the 20-year mandatory m in im u m sentence was a violation of the due process guarantee of the Fifth A m e n d m e n t . He contends that in light of the arbitrary distinction between c r a c k and powder cocaine sentences, the mandatory 20-year sentence in his case w a s without due process of law. He also argues that the statutory minimum s e n t e n c in g scheme violated due process because it deprived the district court ju d g e of the ability to determine a just sentence under the particular facts of this case. T h e se due process arguments have been rejected by this court and the S u p r e m e Court on both bases, sentencing disparity and lack of individualized s e n te n c in g determination. See Chapman v. United States, 500 U.S. 453, 467 (1 9 9 1 ) ("Congress has the power to define criminal punishments without giving th e courts any sentencing discretion."); United States v. Rojas-Martinez, 968 F .2 d 415, 420 (5th Cir. 1992) ("Imposition of mandatory minimum sentences for o ffe n s e s involving large quantities of illegal drugs bears a rational relationship to the legitimate purpose of enforcing federal drug laws and is not arbitrary."); U n ite d States v. Thomas, 932 F.2d 1085, 1089-90 (5th Cir. 1992) (rejecting claim t h a t the sentencing disparity between powder cocaine and crack cocaine violates th e Due Process Clause); United States v. Wilson, 77 F.3d 105, 112 (5th Cir. 1 9 9 6 ) (same). The district court did not err in sentencing Kimmons to the m a n d a to r y minimum penalty of 240 months under § 841(b)(1)(A). See United S t a te s v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003). A F F IR M E D . 3