United States v. Frazier , 313 F. App'x 569 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4557
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS JAMAL FRAZIER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:07-cr-00858-DCN-1)
Submitted: November 6, 2008 Decided: December 1, 2008
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Peter Thomas
Phillips, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Nicholas Jamal Frazier
pled guilty to one count of possession with intent to distribute
cocaine and five grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (2000), and one count of using and
carrying a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006). Frazier was
sentenced to 60 months’ imprisonment for the drug conviction and
received a consecutive 60-month prison sentence for the firearm
conviction. He now appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
three issues, but stating that there are no meritorious issues
for appeal. Frazier was informed of his right to file a pro se
supplemental brief, but he has not done so. We affirm.
In the Anders brief, counsel questions whether the
district court complied with the requirements of Fed. R. Crim.
P. 11 in accepting Frazier’s guilty plea, but concludes that it
did. Our review of the transcript of the plea hearing leads us
to conclude that the district court substantially complied with
the mandates of Fed. R. Crim. P. 11 in accepting Frazier’s
guilty plea and that any omissions did not affect his
substantial rights. Further, the transcript reveals that the
district court ensured that Frazier entered his guilty plea
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intelligently, voluntarily, and knowingly, with a full
understanding of the consequences of his plea.
We turn next to Frazier’s sentence. For the drug
offense, Frazier’s advisory Guidelines range was initially
calculated at 57 to 71 months’ imprisonment. However, because
Frazier was subject to a statutory minimum term of five years’
imprisonment for this offense, see 21 U.S.C. § 841(b)(1)(B), his
Guidelines range became 60 to 71 months’ imprisonment. See U.S.
Sentencing Guidelines Manual § 5G1.1(b) (2007). The district
court sentenced Frazier to 60 months’ imprisonment for the drug
offense. The court also imposed the statutorily mandated
consecutive five-year imprisonment term for the firearm offense.
See 18 U.S.C. § 924(c)(1)(A)(i).
Counsel contends that the minimum sentences contained
in § 841 and USSG § 2D1.1 create an unconstitutional disparity
between sentences for crack cocaine and powder cocaine offenses,
in violation of the Equal Protection Clause. However, as
counsel acknowledges, we have previously rejected similar
constitutional challenges to the statute and Guidelines. See
United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995);
United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994);
United States v. D’Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994).
Counsel also argues that the statutory minimum
sentences contained in § 841 should not survive judicial
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scrutiny in light of recent amendments to the Sentencing
Guidelines that lowered the offense levels for drug offenses
involving crack cocaine, see USSG § 2D1.1(c) (2007 & Supp.
2008); USSG App. C Amend. 706, 711; and the decision in
Kimbrough v. United States, 128 S. Ct. 558 (2007). However, as
the Supreme Court recently observed in Kimbrough, after the
Guideline amendments, “sentencing courts remain bound by the
mandatory minimum sentences prescribed [by statute].”
Kimbrough, 128 S. Ct. at 573. Accordingly, this claim is
without merit.
We review a criminal sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 128 S. Ct. 586, 594-97 (2007); United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008). We must first determine whether
the district court committed any “significant procedural error.”
Gall, 128 S. Ct. at 597. We then consider the substantive
reasonableness of the sentence, and may apply a presumption of
reasonableness to a sentence within the Guidelines range. Go,
517 F.3d at 218.
Here, the district court correctly calculated
Frazier’s advisory Guidelines range of 60 to 71 months’
imprisonment for the drug offense and sentenced Frazier to 60
months’ imprisonment, the minimum required by statute and within
the applicable Guideline range. Frazier’s consecutive 60-month
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sentence for the firearm offense was also statutorily mandated.
We recently observed that a “statutorily required sentence . . .
is per se reasonable.” United States v. Farrior, 535 F.3d 210,
224 (4th Cir. 2008). Accordingly, we conclude that Frazier’s
sentence is reasonable.
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm the
district court’s judgment. This court requires counsel to
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion was served on the
client. 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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