United States v. Jenkins , 311 F. App'x 676 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4567
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY ANTWAN JENKINS,
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-00739-DCN-1)
Submitted: February 19, 2009 Decided: February 23, 2009
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Alston Calhoun
Badger, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy Antwan Jenkins appeals from his convictions
after pleading guilty and sentence imposed for possession with
intent to distribute crack cocaine, possession of a firearm by a
convicted felon, and possession of a firearm in furtherance of a
drug trafficking crime. Counsel has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating that
after a review of the record, there are no meritorious issues
for appeal. Jenkins has not filed a pro se supplemental brief,
and the Government declined to file a brief. Jenkins’ Anders
brief argues that the amended crack to powder cocaine ratio is
unconstitutional. Jenkins’ Anders brief also concludes that
Jenkins’ guilty plea was knowing and voluntary. 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 the transcript of
Jenkins’ guilty plea hearing reveals that the district court
fully complied with the requirements of Rule 11. Jenkins’ plea
was knowingly, voluntarily, and intelligently made, with full
knowledge of the consequences attendant to his guilty plea. We
therefore find no plain error.
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Jenkins’ challenge to the constitutionality of 21
U.S.C. § 841 (2006) is without merit. This court has repeatedly
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
(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). To the extent that Jenkins seeks to have this
court 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). Further, the 2007 amendments
to the Sentencing Guidelines have no effect on the
constitutionality or applicability of the statutory mandatory
minimum sentences for crack offenses. Jenkins’ attempt to
bolster his argument with the Supreme Court’s decision in
Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), is
misplaced because its holding that district courts may consider
the crack/cocaine sentencing ratio as a possible basis for
variance from the Guidelines is unrelated to the
constitutionality of the sentencing disparity.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Jenkins’ convictions and sentence. This
court requires that counsel inform Jenkins, in writing, of the
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right to petition the Supreme Court of the United States for
further review. If Jenkins 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 Jenkins.
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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