[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 10-10316                 SEPTEMBER 9, 2010
                          Non-Argument Calendar                JOHN LEY
                                                                CLERK
                        ________________________

                D. C. Docket No. 8:09-cr-00114-VMC-TGW-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RIKKY ALAN JOHNSON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (September 9, 2010)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Rikky Alan Johnson appeals his 60-month sentence for possession with
intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(iii). He concedes that the sentence he received is the

statutory mandatory minimum required by § 841(b)(1)(B)(iii) but contends that the

statute is unconstitutional because the sentencing disparity between cases involving

powder cocaine and those involving crack cocaine, which is effected by the statute,

violates equal protection principles. The parties disagree about whether Johnson

properly preserved this issue in the district court, but that does not matter.

      Under 21 U.S.C. § 841(b)(1)(B)(iii), a defendant who is convicted of

possessing with intent to distribute at least five grams of a mixture or substance

containing crack cocaine must be sentenced to at least five years’ imprisonment. A

defendant must be convicted of possessing with intent to distribute at least 500

grams of a mixture or substance containing powder cocaine to be subject to the

5-year mandatory minimum. 21 U.S.C. § 841(b)(1)(B)(ii). “[T]he district court

remains bound by statutes designating mandatory minimum sentences even after

the remedial holding of United States v. Booker, 

, 

, 

(2005).” United States v. Castaing-Sosa, 

, 1362 (11th

Cir. 2008).

      We have held that the sentencing disparity between crack cocaine and

powder cocaine offenses created by the enactment of § 841 does not violate the



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Equal Protection Clause, even though the statute has a disparate impact. United

States v. Byse, 

, 1168-70 (11th Cir. 1994); United States v. King, 

, 1260 (11th Cir. 1992) (holding that a disparate impact alone was

insufficient to establish an equal protection violation and that § 841 was subject to

rational-basis review); see also United States v. Butler, 

, 1194-95

(11th Cir. 1997) (holding that the 100:1 sentencing disparity between crack

cocaine and powder cocaine offenses in the Sentencing Guidelines does not violate

a defendant’s equal protection rights). Furthermore, in addressing the enactment of

§ 841, we have held that, under rational-basis review, “[t]he fact that crack cocaine

is more addictive, more dangerous, and can be sold in smaller quantities than

powder cocaine is sufficient reason for Congress to provide harsher penalties for

its possession.” 

; 

. We remain

bound by those prior panel precedents. See United States v. Vega-Castillo, 

, 1236 (11th Cir. 2008), cert denied, 

(2009) (quotation

omitted).

      AFFIRMED.




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