United States v. Rushing ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5036
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GRADY LEE RUSHING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cr-00192-MR-1)
Submitted: July 29, 2010 Decided: August 20, 2010
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Adam
Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Grady Lee Rushing pled
guilty to possession with intent to distribute five grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006). The district court sentenced Rushing to the
mandatory minimum term of sixty months’ imprisonment.
Rushing’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious grounds for appeal, but
suggesting that the district court’s reliance on the statutory
mandatory minimum renders Rushing’s sentence procedurally
unreasonable. Rushing has filed a pro se supplemental brief in
which he raises the same issue and challenges the adequacy of
the district court’s explanation for his sentence. For the
reasons that follow, we affirm the district court’s judgment.
Post-Booker, 1 this court reviews a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51. In
1
United States v. Booker, 543 U.S. 220 (2005).
2
determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51. “Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). If
we find “no significant procedural error,” we next assess the
substantive reasonableness of the sentence, taking “‘into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.’” United States v.
Morace, 594 F.3d 340, 346-47 (4th Cir. 2010) (quoting Gall, 552
U.S. at 51).
Both counsel and Rushing advance that the sixty-month
sentence is procedurally unreasonable because it was based on a
purportedly unconstitutional statutory mandatory minimum. We
disagree. As the Supreme Court recognized in Kimbrough v.
United States, 552 U.S. 85, 108 (2007), although sentencing
courts are free, post-Booker, to reject the 100:1 crack
cocaine/powder cocaine ratio in terms of a defendant’s
Guidelines range, they are nonetheless “constrained by the
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mandatory minimums Congress prescribed.” Furthermore, 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 (4th Cir. 1995) (rejecting due process
challenge to same).
We also reject Rushing’s contention that the district
court failed to adequately explain the sentence it imposed. The
district court offered a thorough discussion of the § 3553(a)
sentencing factors that informed its decision to impose the
minimum sentence mandated by statute. See United States v.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010) Accordingly, we hold
that Rushing’s sentence is procedurally reasonable. 2
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none. The
district court complied with the mandates of Federal Rule of
Criminal Procedure 11 in accepting Rushing’s guilty plea.
Accordingly, we affirm the district court’s judgment. This
2
We also afford Rushing’s within-Guidelines sentence a
presumption of substantive reasonableness. See United States v.
Wright, 594 F.3d 259, 267 (4th Cir. 2010); see also Rita v.
United States, 551 U.S. 338, 347 (2007) (upholding rebuttable
presumption of reasonableness for within-Guidelines sentence).
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court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client 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 the client. 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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