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 1996-08

United States v. Ward ( 1996 )


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  • UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.                                                                    No. 95-5623
CHARLES QUINCY WARD,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CR-94-631)
Submitted: July 25, 1996
Decided: August 15, 1996
Before LUTTIG and MOTZ, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
I. S. Leevy Johnson, JOHNSON, TOAL & BATTISTE, P.A., Colum-
bia, South Carolina, for Appellant. Margaret B. Seymour, United
States Attorney, Marvin J. Caughman, Assistant United States Attor-
ney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Charles Quincy Ward appeals the 78-month sentence he received
after pleading guilty to conspiracy to possess crack cocaine with
intent to distribute,
    21 U.S.C.A. § 846
     (West Supp. 1996). He con-
tends that the district court erred in denying him a downward depar-
ture on equal protection grounds. We affirm.
Ward first argues that the district court erred in relying on our pre-
cedents to find that the 100-to-1 ratio prescribed in the sentencing
guidelines* for crack and powder cocaine offenses does not violate
equal protection. Ward invites us to reconsider our prior rulings,
alleging that the discriminatory impact of the ratio was purposeful.
We find that his allegation is unsupported and that the district court's
ruling was correct. See, e.g., United States v. Wallace,
    22 F.3d 84
    , 88
(4th Cir.), cert. denied, ___ U.S. ___,
    63 U.S.L.W. 3266
     (U.S. Oct.
3, 1994) (No. 94-5653); United States v. D'Anjou ,
    16 F.3d 604
    , 612
(4th Cir.), cert. denied, ___ U.S. ___,
    62 U.S.L.W. 3861
     (U.S. June
27, 1994) (No. 93-9131); United States v. Thomas ,
    900 F.2d 37
    , 39-
40 (4th Cir. 1990)
Second, Ward maintains that the district court had discretion to
depart under USSG § 5K2.0, p.s., and erred in not doing so. In this
case, the district court clearly wished to impose a lower sentence than
that required under the guidelines, but found that a departure was pre-
cluded by United States v. Bynum,
    3 F.3d 769
    , 774-75 (4th Cir. 1993),
cert. denied, ___ U.S. ___,
    62 U.S.L.W. 3552
     (U.S. Feb. 22, 1994)
(No. 93-7295). Because the district court made a legal decision that
it lacked authority to depart rather than exercising its discretion, we
review its decision de novo. United States v. Hall,
    977 F.2d 861
    , 863
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual § 2D1.1
(Nov. 1994); see also
    21 U.S.C.A. § 841
    (b) (West 1981 & Supp. 1996).
2
(4th Cir. 1992). The court's decision was correct. Moreover, this
panel cannot overrule the decision of a prior panel in this Circuit.
Brubaker v. Richmond,
    943 F.2d 1363
    , 1381-82 (4th Cir. 1991).
We therefore affirm the sentence imposed. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
3