US v. Gebrian Gillespie, No. 08-5071 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5071 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEBRIAN RAYSHAWN GILLESPIE, a/k/a Gebrian Rayshawn Millspin, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00023-WO-1) Submitted: June 10, 2009 Decided: July 2, 2009 Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, Gregory Davis, Senior Litigator, Winston-Salem, North Carolina, Thomas N. Cochran, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick Auld, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gebrian Rayshawn Gillespie appeals from his conviction on a guilty plea and sentence imposed for distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (2006). His sole issue on appeal is that the crack to powder cocaine ratio is unconstitutional, a claim he raises for the first time on appeal. * We find Gillespie s challenge to the constitutionality of § 841 to be without merit. appeal, this court has As Gillespie acknowledges on repeatedly rejected claims that the sentencing disparity between powder cocaine and crack offenses violates either equal protection or due process. See United 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). To the extent Gillespie seeks to have us reconsider these decisions, a panel of this court cannot overrule the decision of a prior panel. United States v. Simms, 441 F.3d 313, 318 (4th Cir. 2006). Nor Guidelines do have the any 2007 amendments effect on * the to the Sentencing constitutionality or We review Gillespie s claim for plain error because he failed to raise it in the district court. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725 (1993). 2 applicability of the statutory mandatory minimum sentences for crack offenses. Gillespie s attempts to bolster his argument with the Supreme Court s decision in Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), is misplaced because its holding that district courts may consider the crack/cocaine sentencing ratio as a possible basis for variance from the Guidelines is unrelated to the constitutionality of the sentencing disparity, and the Supreme sentencing Court courts in remain Kimbrough specifically bound the sentence. legal before minimum affirm Gillespie s conviction and We dispense with oral argument because the facts and contentions the we mandatory that Id. at 573. sentences prescribed by statute. Accordingly, by held court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3
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