United States v. Tunstalle , 356 F. App'x 652 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4710
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BARRY TUNSTALLE,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00014-TEJ-1)
Submitted: April 30, 2009 Decided: December 15, 2009
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Miller A. Bushong, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Tunstalle pled guilty in 2007 to distributing
cocaine base (crack) and was sentenced within the guideline
range to a term of fifty-five months imprisonment. On appeal,
we vacated the sentence and remanded for resentencing in light
of Kimbrough v. United States, 552 U.S. 85 (2007). See United
States v. Tunstalle, 266 F. App’x 291 (4th Cir. 2008). On
remand, the district court applied the revised guidelines for
crack offenses and recalculated Tunstalle’s advisory guideline
range as 37-46 months. The court then imposed a thirty-two-
month variance sentence pursuant to 18 U.S.C. § 3553(a) (2006),
in view of Tunstalle’s relative youth and relative lack of
criminal history. In this appeal, Tunstalle contends that the
sentence violates his Fifth Amendment substantive due process
rights because the statutory sentencing scheme and the
sentencing guidelines for crack offenses, which provide harsher
sentences than for powder cocaine offenses, are not rationally
related to a legitimate government interest. We affirm.
Tunstalle argues that our prior decisions upholding
the statutory sentencing scheme for crack offenses should not
control because they addressed equal protection claims, while he
is “seeking to vindicate his individual due process right not to
be subject to an arbitrary and irrational sentencing scheme.”
However, we have rejected claims that the sentencing disparity
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between powder cocaine and crack offenses lacks a rational
basis. See United States v. Burgos, 94 F.3d 849, 876-77 (4th
Cir. 1996) (holding that § 841(b) has a rational basis); United
States v. Thomas, 900 F.2d 37 (4th Cir. 1990) (same). While
Tunstalle maintains that data collected since Thomas was decided
has eroded the factual support for its holding, he concedes that
Kimbrough does not call into question the disparity he is
challenging. Moreover, since Kimbrough was decided, the Second
Circuit has affirmed its own prior decisions upholding the
constitutionality of § 841(b) in a case where the appellant
claimed that Ҥ 841(b) violates the equal protection component
of the Fifth Amendment’s Due Process Clause because there is no
rational basis for the disparity between sentences for powder
and crack cocaine.” United States v. Samas, 561 F.3d 108, 109
(2d Cir. 2009).
We therefore affirm the sentence imposed by the
district court. 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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