US v. William Nelson, No. 09-4297 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4297 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM KEITH NELSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00429-JAB-4) Submitted: October 25, 2010 Decided: November 18, 2010 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Seth R. Cohen, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro, North Carolina, for Appellant. John W. Stone, Jr., Acting United States Attorney, Angela H. Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Keith Nelson appeals his conviction and 120month sentence following his guilty plea to distribution of 56.4 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2006). Nelson s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether Nelson s sentence to the statutory mandatory minimum term of imprisonment was reasonable. Counsel requests that the court reconsider decision and overrule its in United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), to allow a district court discretion to depart from the statutorily mandated minimum sentence. briefs In addition, counsel and Nelson filed supplemental challenging the indictment and Nelson s conviction because the Assistant United States Attorney who prosecuted the case in the district court had previously had his law license suspended. Counsel also requests remand for resentencing in light of recent legislation addressing crack cocaine sentencing disparities. To reconsider Finding no reversible error, we affirm. the our extent prior Nelson holding in seeks to Robinson, have the this decision court of a prior panel is binding unless it is overruled by a subsequent en banc opinion of the court or a superseding contrary decision 2 of the Supreme Court. 311 (4th Cir. United States v. Collins, 415 F.3d 304, 2005). Consequently, we conclude that the district court possessed no discretion to sentence Nelson below the statutory mandated by statutorily minimum 21 sentence U.S.C. mandated § of 120 841(b)(1)(A) minimum sentence months (2006), is imprisonment and per se that the reasonable. United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). We reject Nelson s request to remand for resentencing, as the Fair Sentencing Act of 2010, which amended the penalty provisions of 21 U.S.C. § 841(b) by increasing the quantities of crack cocaine required to trigger mandatory minimum sentences, does not apply See Fair Sentencing Act of 2010, Pub. L. No. retroactively. 111-220, 124 Stat. 2372; United States v. Gomes, ___ F.3d ___, 2010 WL 3810872 Carradine, __ (11th F.3d Cir. __, Oct. 2010 WL 1, 2010); 3619799 United (6th Cir. States v. Sept. 20, 2010). Finally, review of the record indicates that Nelson has failed to establish a violation of his constitutional right to due process of law or prejudice warranting reversal of the district court s Government s suspended. judgment attorney had arising from had license his the fact to that the practice law Therefore, Nelson is not entitled to dismissal of the indictment or relief from his conviction and sentence. 3 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Nelson s conviction and sentence. This court requires that counsel inform Nelson, in writing, of the right to petition the Supreme Court of the United States for further review. If he requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Nelson. 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 4
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