United States v. Vincent Edward Underwood , 427 F. App'x 728 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13351 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00448-VMC-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINCENT EDWARD UNDERWOOD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 23, 2011)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Vincent Edward Underwood appeals his sentence of 180 months of
imprisonment for possessing with intent to distribute controlled substances, 21
U.S.C. § 841(a), being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1),
and possessing a firearm in furtherance of a drug trafficking offense, id.§ 924(c)(1). We affirm.
Underwood pleaded guilty to drug and firearms offenses without the benefit
of a plea agreement. His presentence investigation report provided a combined
base offense level of 24. United States Sentencing Guidelines Manual § 2D1.1
(2009). The report stated that the Supreme Court had held in United States v.
Spears, 129 S. Ct. 840 (2009), that a district court may vary from the crack cocaine
guidelines, but the report stated that a variance would not affect Underwood’s
sentence because he faced mandatory minimum sentences of 10 years for his drug
crime, 21 U.S.C. § 841(b)(1)(B), and of 5 years for possessing a firearm, 18 U.S.C.
§ 924(c)(1)(A)(i). The report also detailed Underwood’s three prior convictions
for selling and possessing illegal drugs and other criminal conduct.
At his sentencing hearing, Underwood asked the district court to vary from
the crack cocaine guidelines, but the district court rejected the request “for the
reasons . . . set[] forth” in the presentence report. After the district court sentenced
Underwood, he objected and argued that his sentence was unreasonable. The
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district court responded “that the minimum mandatory sentences [were]
appropriate and fair” based on Underwood’s criminal history.
Underwood argues that he is “entitled” to be sentenced according the Fair
Sentencing Act, which was enacted while his appeal was pending, but this
argument is foreclosed by our decision in United States v. Gomes, 621 F.3d 1343(11th Cir. 2010), cert. denied, 131 S. Ct. 1833 (2011). In Gomes, we held that the
savings statute, “1 U.S.C. § 109[,] bars the Act from affecting . . . punishment” for
crimes committed before its enactment. Id. at 1346. Underwood also argues that
his sentence to the mandatory minimum term of imprisonment based on the 100 to
1 crack cocaine ratio violates his right to equal protection under the Fifth
Amendment of the U.S. Constitution, but we have held that this disparity is not
unconstitutional, United States v. King, 972 F.2d 1259, 1259–60 (11th Cir. 1992).
Underwood’s sentence is AFFIRMED.
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