United States v. Mays ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5058
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERVINE MAYS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:07-cr-00131-PMD-1)
Submitted: April 7, 2008 Decided: May 8, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Ervine Mays, Jr., pled guilty, without a plea agreement,
to possession with intent to distribute five grams or more of
cocaine base (“crack”), a quantity of cocaine, and a quantity of
marijuana, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.
2007) (Count One), and using and carrying a firearm during and in
relation to, and possessing a firearm in furtherance of, a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)(A)(I)
(West 2000 & Supp. 2007) (Count Two). The district court sentenced
Mays to sixty months in prison on Count One and a consecutive sixty
months in prison on Count Two. Mays timely appealed.
Mays’ attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning whether the
district court complied with Rule 11 of the Federal Rules of
Criminal Procedure in accepting Mays’ guilty plea, asserting that
the 100:1 ratio for crack cocaine and powder cocaine sentences
under § 841 is unconstitutional, and questioning the reasonableness
of Mays’ sentence. Counsel states, however, that she has found no
meritorious grounds for appeal.1 Finding no meritorious grounds
for appeal, we affirm.
Although counsel questioned the district court’s
compliance with Rule 11, she concluded that there were no errors in
the Rule 11 proceeding. We note that the district court failed to
inform Mays that he could persist in his initial plea of not
1
Mays received notice of his right to file a pro se
supplemental brief, but he did not file one.
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guilty, as required by Fed. R. Crim. P. 11(b)(1)(B). Because Mays
did not move in the district court to withdraw his guilty plea, any
error in the Rule 11 hearing is reviewed for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
To demonstrate plain error, Mays must establish that
error occurred, that it was plain, and that it affected his
substantial rights. United States v. Hughes, 401 F.3d 540, 547-48
(4th Cir. 2005). A defendant who alleges that there was Rule 11
error affecting his substantial rights bears the burden of showing
a reasonable probability that, but for the error, he would not have
entered the plea. United States v. Dominguez Benitez, 542 U.S. 74,
83 (2004).
Mays was aware that he could persist in his plea of not
guilty because the very purpose of the plea hearing was to change
his plea from not guilty to guilty. United States v. Knox, 287
F.3d 667, 670 (7th Cir. 2002). The record provides no basis upon
which to conclude that Mays would not have pled guilty had the
district court advised him of his right to continue to plead not
guilty.
Next, Mays takes issue with the 100:1 crack cocaine
versus powder cocaine sentencing disparity in § 841, arguing that
it violates his equal protection rights. We note that the
Sentencing Commission has recently amended the federal sentencing
guidelines to reduce the disparity in the guidelines, see U.S.
Sentencing Guidelines Manual § 2D1.1 (c) (2007), but the statute
has not been amended. Mays acknowledges that this court has
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rejected challenges to the constitutionality of § 841, see, e.g.,
United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995); United
States v. D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994), but he wishes
to preserve his objection to the disparity. To the extent that
Mays seeks to have this court reconsider its holdings in these
cases, “a panel of this court cannot overrule, explicitly or
implicitly, the precedent set by a prior panel of this court. Only
the Supreme Court or this court sitting en banc can do that.”2
Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th
Cir. 2002) (internal quotation marks and citations omitted).
Finally, Mays argues that his sentence is unreasonable.
Appellate courts review sentences imposed by district courts for
reasonableness, applying an abuse of discretion standard. Gall v.
United States, 128 S. Ct. 586, 597-98 (2007); United States v.
Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). When sentencing a
defendant, a district court must: (1) properly calculate the
guideline range; (2) determine whether a sentence within that range
serves the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2007); (3) implement mandatory statutory limitations; and (4)
explain its reasons for selecting a sentence. Pauley, 511 F.3d at
473. In the Fourth Circuit, “[a] sentence within the proper
2
The Supreme Court’s recent decision in Kimbrough v. United
States, 128 S. Ct. 558 (2007) (holding that district court has
discretion to find “that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s purpose,
even in a mine run case”), did not find § 841's penalty provisions
unconstitutional, nor did it overrule this court’s prior holdings
rejecting such challenges to the 100:1 ratio.
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Sentencing Guidelines range is presumptively reasonable.” United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v.
United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
presumption of reasonableness for within-guidelines sentence).
This presumption can only be rebutted by showing that the sentence
is unreasonable when measured against the § 3553(a) factors.
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006),
cert. denied, 127 S. Ct. 3044 (2007).
Here, the district court correctly calculated the
guideline range, treated the guidelines as advisory, and considered
the § 3553(a) factors. The court considered “the nature and
circumstances of the offense and the history and characteristics of
the defendant,” 18 U.S.C.A. § 3553(a)(1), and the need “to provide
just punishment for the offense,” id. at § 3553(a)(2)(A). The
court then imposed consecutive sixty—month prison terms, the bottom
of the guideline range and the statutory minimum. We find that the
sentence is reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
Accordingly, we affirm Mays’ convictions and sentence. This court
requires that counsel inform Mays, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Mays 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 Mays. We
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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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