United States v. Glover ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5755
FRANKLIN GLOVER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CR-95-366)
Submitted: June 20, 1996
Decided: July 16, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Margaret B. Seymour, United States
Attorney, Sean Kittrell, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Franklin Glover pled guilty to possession of powder cocaine and
crack cocaine with intent to distribute, 21 U.S.C.A.§ 841 (West 1981
& Supp. 1996), and was sentenced to a term of 94 months imprison-
ment. He appeals his sentence, contending that the district court erred
in refusing to invalidate the sentencing guidelines applicable to crack
cocaine offenses. We affirm.
Before he was sentenced, Glover requested that the district court
invalidate, on due process grounds, the sentencing guideline which
sets the penalties for crack offenses, United States Sentencing Com-
mission, Guidelines Manual, § 2D1.1 (Nov. 1994). He asserted that,
because the Sentencing Commission had recently proposed amending
USSG § 2D1.1 to eliminate the difference in sentencing cocaine and
crack offenses, a sentence imposed under the current guideline would
be a sentence in violation of law and a denial of due process. The dis-
trict court refused to invalidate the current guideline, finding that
higher sentences for crack offenses are justified because crack is more
addictive and has a more devastating effect on the user. We have no
difficulty in affirming the court's ruling because we have previously
upheld the crack sentencing scheme against similar challenges. See,
e.g., United States v. Fisher, 58 F.3d 96, 98-100 (4th Cir.), cert.
denied, 64 U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923) (vague-
ness, equal protection); United States v. Bynum , 3 F.3d 769, 774-75
(4th Cir. 1993), cert. denied, 62 U.S.L.W. 3552 (U.S. Feb. 22, 1994)
(No. 93-7295) (disparate impact); United States v. Thomas, 900 F.2d
37, 38-40 (4th Cir. 1990) (Eighth Amendment and equal protection);
see also United States v. Hayden, ___ F.3d ___, 1996 WL 287799,
at *3 (4th Cir. May 31, 1996) (holding that proposed amendment does
not alter prior decisions).
On appeal, Glover argues that in creating the 100-to-1 ratio for
crack and cocaine offenses the Sentencing Commission violated the
statutory mandates of 18 U.S.C.A. §§ 3553(a)(2), (b) (West 1985 &
Supp. 1996), and 28 U.S.C. § 991(b) (1988), which set out the general
purposes of the Sentencing Commission. Specifically, he contends
that the current version of USSG § 2D1.1 is unfair in that it provides
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different sentences for defendants who are guilty of similar criminal
conduct. He also maintains that the statutes mandate proportionality
review for all guideline sentences. These particular arguments were
not made in the district court and are subject to plain error review.
Fed. R. Crim. P. 52(b). However, our precedents again are to the con-
trary. In Thomas, we held that an extensive proportionality review is
not required for mandatory minimum sentences for crack offenses
which are less than life sentences without parole. 900 F.2d at 39. In
Fisher, we held that Congress intentionally imposed separate penal-
ties for crack offenses because crack is a "particularly harmful form
of cocaine," a form that is more destructive than powder cocaine. 58
F.3d at 99. Therefore, Glover's arguments provide no basis for invali-
dating USSG § 2D1.1.
Accordingly, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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