United States v. Jordan ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4715
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN JEROME JORDAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:07-cr-00258-TDS-2)
Submitted: July 13, 2010 Decided: August 18, 2010
Before WILKINSON, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Carlyle Sherrill, III, SHERRILL & CAMERON, Salisbury, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Jerome Jordan pled guilty, pursuant to a plea
agreement, to distribution of 57.66 grams of crack cocaine and
aiding and abetting, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A) (2006) and 18 U.S.C. § 2 (2006). Prior to the plea
hearing, the Government filed two notices of prior felony drug
convictions pursuant to 21 U.S.C. § 851 (2006), but withdrew one
of the notices prior to sentencing in accordance with the plea
agreement. The district court sentenced Jordan to the statutory
minimum of 240 months of imprisonment, ten years of supervised
release, and a $100 special assessment. Jordan timely appealed.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether the
district court erred in sentencing Jordan to a longer term of
imprisonment than he would have received for an equal quantity
of powder cocaine, because application of the statutory
mandatory minimum violated Jordan’s due process rights. In his
pro se supplemental brief, Jordan argues that the district court
erred in using his 1993 juvenile conviction to increase his
statutory sentencing range, and that his plea was involuntary
because the court failed to explain how this conviction would
increase his sentence. He also asserts that the court erred in
using six state misdemeanor convictions to increase his criminal
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history score, and that the court’s disregard of the gross
disparity between crack and powder cocaine sentences was an
abuse of discretion. The Government declined to file a brief.
The constitutionality of a federal statute is a
question of law that is reviewed de novo. United States v.
Buculei, 262 F.3d 322, 327 (4th Cir. 2001). We repeatedly have
rejected claims that the sentencing disparity between powder
cocaine and crack offenses violates either equal protection or
due process. See United States v. Perkins, 108 F.3d 512, 518-19
& n.34 (4th Cir. 1997) (citing cases); United States v. Burgos,
94 F.3d 849, 876-77 (4th Cir. 1996) (en banc). To the extent
that Jordan 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).
Counsel acknowledges that this court has rejected the
due process argument he asserts, but contends that these
precedents should be reconsidered in light of the Supreme
Court’s decision in Kimbrough v. United States, 552 U.S. 85(2007). In Kimbrough, however, the Supreme Court did not
analyze the statutory minimum sentences for crack cocaine
offenses, but rather held that a district court may consider the
crack-powder disparity in the Sentencing Guidelines as a basis
for imposing a lesser sentence in a crack cocaine case.
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Kimbrough, 552 U.S. at 109-11. The Court also stated that “as
to crack cocaine sentences in particular, we note a
congressional control on disparities: possible variations among
district courts are constrained by the mandatory minimums
Congress prescribed in the 1986 Act.” Id. at 108. “[A]
district court has no discretion to impose a sentence outside of
the statutory range established by Congress for the offense of
conviction,” unless the Government moves for a departure based
on the defendant’s substantial assistance. United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005). In this case, the
Government did not move for a departure, and thus the statutory
minimum applied. Our review of the record leads us to conclude
that the district court properly imposed the statutory minimum
twenty-year sentence, which is reasonable. See United States v.
Farrior, 535 F.3d 210, 224 (4th Cir. 2008) (“A statutorily
required sentence . . . is per se reasonable.”).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We have considered the arguments asserted in Jordan’s pro se
supplemental brief and conclude they do not entitle him to
relief. We therefore affirm Jordan’s conviction and sentence.
This court requires that counsel inform Jordan, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Jordan requests that a petition be filed,
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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 Jordan.
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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