United States v. Gilyard ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5073
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BOBBY MICHAEL GILYARD, a/k/a Big Mike,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:09-cr-00274-HMH-1)
Submitted: August 19, 2010 Decided: August 26, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Everett P. Godfrey, Jr., GODFREY LAW FIRM LLC, Greenville, South
Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Gilyard pled guilty pursuant to a written plea
agreement to possession with intent to distribute and
distribution of fifty grams or more of cocaine base and a
quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A), (b)(1)(D) (2006). He was sentenced to the
statutorily-mandated minimum sentence of 240 months’
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting, in his
opinion, there are no meritorious grounds for appeal but raising
the issue of whether the sentencing scheme for cocaine base
offenses under 21 U.S.C. § 841 violates the Due Process and
Equal Protection clauses. Finding no reversible error, we
affirm.
Gilyard argues that the sentencing scheme under 21
U.S.C. § 841 as it relates to cocaine base is unconstitutional
because it is not proportional to sentences for powder cocaine
and therefore it violates his rights to due process and equal
protection. As counsel concedes, this issue is foreclosed by
Circuit precedent that has not been overruled. See United
States v. Perkins, 108 F.3d 512, 518-19 (4th Cir. 1997)
(rejecting equal protection challenge to the disparate statutory
mandatory minimums applicable to crack cocaine and powder
cocaine offenses); United States v. Fisher, 58 F.3d 96, 99-100
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(4th Cir. 1995) (rejecting due process challenge to same). See
also Kimbrough v. United States, 552 U.S. 85, 108 (2007)
(recognizing that, although sentencing courts are free to reject
the 100:1 crack/powder ratio used to calculate a defendant’s
Guidelines range, they are nonetheless “constrained by the
mandatory minimums Congress prescribed.”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We further reject Gilyard’s arguments in his pro se
supplemental brief. We therefore affirm the district court’s
judgment. This court requires that counsel inform Gilyard, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Gilyard 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 Gilyard. 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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