FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 30, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14220

Non-Argument Calendar

________________________

D. C. Docket No. 04-00031-CR-ORL-31-KRS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ALEJANDRO BARRAGAN-SANCHEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 30, 2006)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
2

Alejandro Barragan-Sanchez (Sanchez) appeals his mandatory minimum

120-month sentence, imposed after he pled guilty to conspiring to possess with

intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On

appeal, he argues that mandatory minimum sentences conflict with the sentencing

purposes of 18 U.S.C. § 3553(a) and are unconstitutional in light of United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons

set forth more fully below, we affirm. 

Sanchez pled guilty to the aforementioned charge before a magistrate and

admitted to, inter alia, being the half-owner of eight kilograms of cocaine

sometime during January 2003. The magistrate accepted Sanchez’s plea as

knowing and voluntary.

A presentence investigation report (PSI) set Sanchez’s offense level at 32

based upon a finding of between 1,000 and 3,000 kilograms of marijuana

equivalency, U.S.S.G. § 2D1.1(c)(3). Sanchez received a two-level enhancement

for being a manager or supervisor in the criminal activity. Next, Sanchez was

given a three-level reduction for acceptance of responsibility pursuant to U.S.S.G.

§§ 3E1.1(a) and (b), for a total offense level of 31. Sanchez was found to be at

criminal history category II, which at offense level 31, provided for a guidelines

range of 121-151 months’ imprisonment. The mandatory minimum sentence was
3

10 years, or 120 months, pursuant to 21 U.S.C. § 841(b)(1)(A).

Sanchez objected to the two-level role enhancement, and also argued that the

sentencing guidelines were unconstitutional in light of Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Sanchez also requested that,

rather than being sentenced at the low-end of the guidelines, 121 months, he be

sentenced to 120 months’ imprisonment, the mandatory minimum. The

government supported Sanchez’s request, noting that a 120-month sentence would

avoid any issues under Blakely. The court declined the invitation, and sentenced

Sanchez to 121 months’ imprisonment.

While Sanchez’s case was pending on appeal, the Supreme Court issued its

decision in United States v. Booker, rendering the guidelines advisory instead of

mandatory, and the government filed a motion requesting that the district court

certify that a remand was warranted in order to correct the error and resentence

Sanchez. The district court granted the motion, and issued an order stating that it

was inclined to resentence Sanchez. Subsequently, this Court granted the

government’s motion for a remand for resentencing.

At resentencing, Sanchez, in order to preserve the record, requested that the

district court sentence him below the 120-month mandatory minimum, arguing that

mandatory minimum sentences violated the Fifth, Sixth, and Eighth Amendments
4

in light of Booker. The district court stated that it was bound by precedent and

that, but for the guidelines, it probably would have sentenced Sanchez to the

mandatory minimum. Accordingly, Sanchez’s sentence was reduced one month to

120 months’ imprisonment, the statutory minimum.

On appeal, Sanchez concedes that we previously have upheld the

constitutionality of mandatory minimum sentences in drug cases, including after

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),

but argues that, post-Booker, mandatory minimum sentences now infringe on a

judge’s discretion and duty to impose a sentence sufficient, but not greater than

necessary, to achieve the sentencing goals based upon 18 U.S.C. § 3553(a). 

Sanchez argues that some sentences below mandatory minimums are sufficient, but

not greater than necessary, to achieve sentencing purposes under § 3553(a), and,

therefore, mandatory minimums create a conflict between Booker’s remedial

scheme and federal sentencing law. Thus, Sanchez argues that the rule of lenity

requires this Court to proceed in a manner that favors defendants and permit

§ 3553(a) to “trump” mandatory minimum sentences, thereby permitting courts to

take the minimum into account, but sentence below what, in essence, would be an

advisory minimum sentence. 

We review constitutional challenges to a sentence de novo. United States v.
5

Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). To the extent the question raised is

one of statutory interpretation, review is also de novo. United States v. Searcy, 418

F.3d 1193, 1195 (11th Cir. 2005), cert. denied, (U.S. Jan. 9, 2006) (No. 05-7922). 

In Booker, the Supreme Court explicitly reaffirmed its holding in Apprendi

that “[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” United States v. Booker, 543 U.S. at ___, 125 S.Ct. at

756. In a second, remedial opinion, the Court held that the guidelines were no

longer mandatory, but advisory, and district courts should take the guidelines into

account when considering all of the sentencing factors set forth at 18 U.S.C.

§ 3553(a). Id. at ___, 125 S.Ct. at 764, 767-69. Nothing in Booker, however,

eliminated or declared unconstitutional mandatory minimum sentences as provided

for by Congress in drug crimes. 

Pre-Booker and Apprendi, we upheld the constitutionality of mandatory

minimum sentences, noting that, “within the congressionally established range for

sentences, nothing in section 841(b)(1) restricts the discretion of a sentencing

judge in fashioning an individualized sentence in light of the specific facts of the

offense and history of the offender.” United States v. Holmes, 838 F.2d 1175,
6

1177 (11th Cir. 1988) (rejecting argument that mandatory minimums violate due

process). Post-Apprendi, the Supreme Court upheld the constitutionality of

mandatory minimum sentences. Harris, 536 U.S. at 568-69, 122 S.Ct. at 2420. 

The Supreme Court in Booker made no mention of Harris, nor has it overruled it

since. 

Accordingly, while it is possible that Booker’s remedial scheme could

implicate mandatory minimum sentences in the future, until the Supreme Court

holds that mandatory minimums violate the Fifth and Sixth Amendments of the

Constitution, we are obliged to continue following Harris as precedent. As we

recently stated: 

It is not given to us to overrule the decisions of the Supreme Court. 

We have stated repeatedly, and with respect to the very issue

presented in this appeal, that ‘we are not at liberty to disregard

binding case law that is so closely on point and has been only

weakened, rather than directly overruled, by the Supreme Court.’

This is so even if we are convinced that the Supreme Court will

overturn its previous decision the next time it addresses the issue. 

United States v. Gibson, No. 04-14776, manuscript op. at 22-23 (11th Cir. Jan. 4,

2006) (holding that, while wounded, the Supreme Court’s decision in AlmendarezTorres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998)

remains binding precedent) (citations omitted). Thus, unless and until the Supreme

Court holds that mandatory minimum sentences violate the Constitution, Sanchez’s
 It is noted as well that Sanchez admitted during his plea colloquy to the amount of drugs 1

used to trigger the mandatory minimum sentence of 120 months’, precluding any possible Booker

constitutional error, and was resentenced under the advisory guidelines scheme, precluding any

possible statutory error. 

 The government urges us to apply the doctrine of expressio unius est exclusio alterius 2

(mention of one thing implies the exclusion of the other). This is one method of statutory

construction, but does not carry the rule or force of law. See United States v. Camacho-Ibarquen,

410 F.3d 1307, 1312-13 (11th Cir. 2005). While the government’s argument may have merit, we

decline to address the issue at this time. 

7

argument lacks merit. See also United States v. Shelton, 400 F.3d 1325, 1333 1

n.10 (11th Cir. 2005) (“[w]e emphasize that the district court was, and still is,

bound by the statutory minimums.”).

Lastly, to the extent that Sanchez is arguing that mandatory minimums

conflict with the statutory sentencing duties of a court under 18 U.S.C. § 3553(a),

this argument lacks merit. Congress specifically granted district courts the

authority to sentence below a prescribed mandatory minimum sentence in limited

circumstances, such as where a defendant provides substantial assistance to

authorities, or in the case of a defendant with little to no criminal history who

meets other criteria. See 18 U.S.C. §§ 3553(e) and (f). The fact that Congress has 2

chosen to set a sentencing floor for drug crimes does not conflict with § 3553(a),

but rather provides a starting point for sentencing. As the Supreme Court noted in

Harris, judicial discretion may be channeled when certain findings are made, and in

the instant case, Sanchez admitted to the drug amount triggering his mandatory
8

minimum. See Harris, 536 U.S. at 567, 122 S.Ct. at 2419. While mandatory

minimum sentences are open to criticism, such as the failure to take into account

the unique circumstances of certain offenders, these issues and questions are best

left to Congress. Id. at 568-69, 122 S.Ct. at 2420. 

Based on the foregoing, we affirm Sanchez’s 120-month sentence, which

was required by statute. 

AFFIRMED.