United States v. Ford , 355 F. App'x 756 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4545
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODERICK LAMART FORD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00870-RBH-4)
Submitted: November 30, 2009 Decided: December 14, 2009
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dennis M. Hart, Washington, D.C., for Appellant. W. Walter
Wilkins, United States Attorney, Columbia, South Carolina; Rose
Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roderick Lamart Ford pled guilty to conspiracy to
distribute and possess with intent to distribute more than fifty
grams of crack cocaine, in violation of 21 U.S.C. § 846 (2006).
The district court denied Ford’s motion to withdraw his guilty
plea and sentenced him to the statutory mandatory minimum
sentence of 240 months. See 21 U.S.C.A. §§ 841(b)(1)(A), 851
(West Supp. 2009). On appeal, Ford contends that he should have
been allowed to withdraw his plea on the ground that the
mandatory minimum sentence of twenty years violates his equal
protection and due process rights. Finding no reversible error,
we affirm.
Ford asserts that the statutory sentencing disparity
between crack and powder cocaine offenses is unconstitutional.
Ford relies on the fact that courts are lowering, or even
eliminating, the crack-to-powder-cocaine ratio in sentencing and
argues that the statute also should treat the drugs the same so
that there will be no disproportionate impact on
African-American defendants. Because Ford does not argue on
appeal that the district court abused its discretion in applying
the factors set forth in United States v. Thompson-Riviere, 561
F.3d 345, 348 (4th Cir. 2009), when ruling on his motion to
withdraw, we conclude that he has forfeited appellate review of
the court’s application of those factors. See Edwards v. City
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of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (noting that
issues not briefed or argued are deemed abandoned).
Ford’s argument that the crack-to-powder-cocaine
sentencing disparity is unconstitutional essentially is an
attack on his sentence, not on his guilty plea. We repeatedly
have rejected claims that the sentencing disparity between
powder cocaine and crack offenses violates either equal
protection or due process. See, e.g., United States v. Perkins,
108 F.3d 512, 518-19 & n.34 (4th Cir. 1997); United States v.
Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en banc). To the
extent that Ford seeks to have us reconsider these decisions, a
panel of this court cannot overrule the decision of a prior
panel. United States v. Simms, 441 F.3d 313, 318 (4th Cir.
2006).
Furthermore, the 2007 amendments to the sentencing
guidelines have no effect on the constitutionality or
applicability of the statutory mandatory minimum sentences for
crack offenses. Although Ford refers to the Supreme Court’s
decisions in Spears v. United States, 129 S. Ct. 840 (2009), and
Kimbrough v. United States, 552 U.S. 85 (2007), to bolster his
equal protection argument, this reference is misplaced. In
fact, the Supreme Court explicitly stated in Kimbrough that even
after the 2007 amendments, “district courts are constrained by
the mandatory minimum[] [sentences] Congress prescribed . . . .”
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Id. at 108; see United States v. McClellon, 578 F.3d 846, 861
(8th Cir. 2009) (rejecting equal protection and due process
challenge to § 841 and stating that “while there is proposed
legislation in Congress that may remedy the problems in
question, these actions remain mere proposals, and it is not the
province of this court to anticipate and implement what may or
may not occur in Congress”).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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