United States v. Samuel Exil , 608 F. App'x 884 ( 2015 )

Case: 14-14313 Date Filed: 06/12/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14313
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20232-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL EXIL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 12, 2015)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Samuel Exil appeals his 120-month sentence, imposed within the advisory
guideline range and in compliance with the statutory minimum, after pleading
guilty to one count of conspiring to possess with intent to distribute five or more
kilograms of cocaine, in violation of 21 U.S.C. § 846. On appeal, Exil argues for
the first time that his prison sentence of 120 months is unconstitutional because the
statute setting forth the minimum sentence, 21 U.S.C. § 841(b)(1)(A), violates his
rights under the Due Process Clause and the Equal Protection Clause of the Fifth
and Fourteenth Amendments. Exil also avers that his sentence constitutes cruel
and unusual punishment under the Eighth Amendment because the district court
did not engage in a proportionality analysis using the factors outlined in Harmelin
v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991). Upon review of the record on
appeal and after consideration of the parties’ briefs, we find that Exil’s 120-month
sentence is constitutional, and we affirm the district court.
We have squarely held that the statutory minimum sentences under 21
U.S.C. § 841(b) are not unconstitutional. United States v. Osburn, 955 F.2d 1500,
1505 (11th Cir. 1992). We have also held that minimum sentences under § 841(b)
do not constitute cruel and unusual punishment. See United States v. Holmes, 838
F.2d 1175, 1178–79 (11th Cir. 1988); see also United States v. McGarity, 669 F.3d
1218, 1256 & n.57 (11th Cir. 2012). Exil’s conclusory argument that the district
court “must” employ an individualized test for his case does not explain what
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makes his sentence unique among the myriad other sentences imposed in this
Circuit under statutory minima, such that a proportionality analysis would have
resulted in a finding of unconstitutionality for him and him alone. Without making
such a showing, and without showing thereby that his rights were substantially
affected, Exil cannot show that the district court committed plain error. See United
States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (finding that a constitutional
challenge to a statute raised for the first time on appeal is subject to plain error
review and setting forth the requirements thereof).
AFFIRMED.
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