United States v. Whitma ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4518
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MANDY RAE WHITMAN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00367-TLW-4)
Submitted: February 24, 2010 Decided: March 17, 2010
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Arthur
Bradley Parham, Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mandy Rae Whitman pled guilty pursuant to a plea
agreement to conspiracy to distribute cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (2006), and was
sentenced to 135 months in prison. Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that after a review of the record, he has found no
meritorious issues for appeal. The Anders brief nonetheless
highlights the fact that Whitman’s sentence was not based on a
one-to-one crack to powder cocaine ratio, as had been advocated
by defense counsel and the Government at sentencing. Whitman
has not filed a pro se supplemental brief despite receiving
notice that she may do so, and the Government declined to file a
responsive brief. Finding no error, we affirm.
In the absence of a motion to withdraw a guilty plea,
we review the adequacy of the guilty plea pursuant to Fed. R.
Crim. P. 11 for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). A review of Whitman’s Rule
11 hearing reveals that the district court substantially
complied with Rule 11’s requirements. Whitman’s plea was
knowingly, voluntarily, and intelligently made, with full
knowledge of the consequences attendant to her guilty plea. We
therefore find that no plain error occurred and affirm Whitman’s
conviction.
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We also affirm Whitman’s sentence. The district court
properly assessed Whitman’s criminal history as category IV and
calculated a total offense level of thirty, yielding a
Guidelines range of 135-168 months. Moreover, at sentencing,
the district court entertained counsel’s argument regarding the
weight that should be afforded the 18 U.S.C. § 3553(a) (2006)
factors, allowed Whitman an opportunity to allocute, and
thoroughly considered the § 3553(a) factors before imposing
Whitman’s sentence. We find that the district court adequately
explained its rationale for imposing Whitman’s sentence, the
sentence was “selected pursuant to a reasoned process in
accordance with law,” and the reasons relied upon by the
district court are plausible and justify the sentence imposed.
See United States v. Pauley, 511 F.3d 468, 473-76 (4th Cir.
2007); see also United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009) (recognizing that the district court must “place on
the record an individualized assessment based on the particular
facts of the case before it” and that the “individualized
assessment . . . must provide a rationale tailored to the
particular case at hand and [be] adequate to permit meaningful
appellate review”).
Moreover, Whitman’s challenge to the crack-to-powder
cocaine sentencing disparity is without merit. This court has
repeatedly rejected claims that the sentencing disparity between
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powder cocaine and crack offenses violates either equal
protection or due process. See United States v. Perkins,
108 F.3d 512, 518 (4th Cir. 1997); United States v. Burgos,
94 F.3d 849, 876-77 (4th Cir. 1996); United States v. Fisher,
58 F.3d 96, 99-100 (4th Cir. 1995). Further, to the extent
Whitman seeks to have this court reconsider these decisions, a
panel of this court cannot overrule the decision of a prior
panel. United States v. Collins, 415 F.3d 304, 311 (4th Cir.
2005). Accordingly, we affirm Whitman’s sentence. See United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (recognizing
that this court applies an appellate presumption of
reasonableness to a within-Guidelines sentence).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Whitman, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Whitman requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Whitman. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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