United States v. Wilson , 401 F. App'x 760 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4160
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RONALD LEE WILSON, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00023-WO-1)
Submitted: October 25, 2010 Decided: November 12, 2010
Before MOTZ, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert A. Broadie, CAROLINA LEGAL SOLUTIONS, High Point, North
Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Lee Wilson, Jr., appeals the 108-month sentence
imposed following his guilty plea to one count of distribution
of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006). Counsel for Wilson filed a brief in this
court in accordance with Anders v. California, 386 U.S. 738(1967), certifying that there are no non-frivolous issues for
appeal, but questioning whether the district court imposed an
unreasonable sentence. Wilson filed a pro se supplemental brief
requesting that counsel’s brief be stricken and new counsel be
appointed, and arguing that he was entitled to a reduction in
sentence to reflect a 1:1 crack to powder cocaine ratio.
Finding no reversible error, we affirm the conviction and
sentence.
Counsel challenges the reasonableness of Wilson’s
sentence but does not specify any deficiencies. We review a
sentence imposed by a district court under a deferential abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 56
(2007); United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.
2010) (abuse of discretion standard of review applicable when
defendant properly preserves a claim of sentencing error in
district court “[b]y drawing arguments from [18 U.S.C.]
§ 3553[(a) 2006] for a sentence different than the one
ultimately imposed”). We begin by reviewing the sentence for
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significant procedural error, including such errors as “failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the
Guidelines.” Gall, 552 U.S. at 51. If there are no procedural
errors, we then consider the substantive reasonableness of the
sentence, taking into account the totality of the circumstances.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50). Accordingly, a
sentencing court must apply the relevant § 3553(a) factors to
the particular facts presented and must “state in open court”
the particular reasons that support its chosen sentence. Id.
The court’s explanation need not be exhaustive; it must be
“sufficient ‘to satisfy the appellate court that [the district
court] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.’”
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
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We conclude that the district court’s sentence was
both procedurally and substantively reasonable. Wilson’s
sentence is below the applicable Guidelines range. See U.S.
Sentencing Guidelines Manual ch. 5, pt. A (sentencing table).
The district court used the correct Guidelines range and
understood that it was advisory. Furthermore, it is apparent
that the court considered both parties’ arguments and had a
reasoned basis for its decision. Therefore, we hold that the
district court did not commit error during sentencing.
In his pro se supplemental brief, Wilson argues that
not only is he entitled to a reduction in his sentence
reflecting the reduction in the crack to powder cocaine ratio
implemented by the Fair Sentencing Act of 2010, Pub. L. No. 111-
220, 124 Stat. 2372, but the new 18:1 ratio is also
unconstitutional. Wilson is not entitled to a sentence
reduction to reflect the 18:1 ratio because the Fair Sentencing
Act does not apply retroactively. See United States v. Gomes,
2010 WL 3810872, at *2 (11th Cir. Oct. 1, 2010); United States
v. Carradine, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20,
2010).
Wilson’s constitutional challenge to the new 18:1
ratio also fails. We have repeatedly rejected claims that the
sentencing disparity between crack and powder cocaine offenses
violates either equal protection or due process. See United
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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).
Furthermore, even after amendments to the crack cocaine
Guidelines, “sentencing courts remain bound by the mandatory
minimum sentences prescribed [by statute].” Kimbrough v. United
States, 552 U.S. 85, 107 (2007). Thus, excepting its downward
departure based on substantial assistance, the district court
had no discretion to sentence Wilson below the mandatory
minimum. See United States v. Robinson, 404 F.3d 850, 862 (4th
Cir. 2005).
In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm the district court’s judgment. Consequently,
we deny Wilson’s request to strike counsel’s brief and appoint
new counsel. This court requires that counsel inform Wilson, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Wilson 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 Wilson.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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