US v. Hakeem Johnson, No. 09-4625 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4625 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAKEEM ABDUK JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-00876-RBH-1) Submitted: July 12, 2010 Decided: July 22, 2010 Before MOTZ, KING, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South Carolina, for Appellant. Kevin F. McDonald, Acting United States Attorney, Carrie A. Fisher, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hakeem Abduk Johnson pled guilty to conspiracy to distribute and possess with intent to distribute cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C), 846 (2006). arguing that sentencing the application disparity process rights Eighth violated Amendment s punishment. and of that his the his crack-to-powder equal 168-month prohibition He now appeals, protection cruel and due violates sentence against cocaine the and unusual Finding no reversible error, we affirm. The constitutionality of a federal statute is a question of law that is reviewed de novo. United States v. Buculei, 262 F.3d 322, 327 (4th Cir. 2001). We repeatedly have 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, 518-19 & n.34 (4th Cir. 1997) (citing cases); United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en banc). that Johnson seeks to have this court To the extent 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). 2 Furthermore, guidelines have the no 2007 effect amendments on the to the sentencing constitutionality or applicability of the statutory mandatory minimum sentences for crack offenses. Although Johnson refers to the Supreme Court s decisions in Spears v. United States, 129 S. Ct. 840 (2009), and Kimbrough v. United States, 552 U.S. 85 (2007), to bolster his equal protection argument, this reference is misplaced. In Spears, the Supreme Court held that the district court may apply a different crack-to-powder-cocaine ratio when considering the § 3553(a) factors, district courts sentencing guidelines. ratio and may as a in Kimbrough, consider the possible basis These holdings are the Court held that crack-to-powder-cocaine for variance unrelated from the to the constitutionality of the sentencing disparity in the statute. In fact, the Supreme Court explicitly stated in Kimbrough that, even after the 2007 amendments, district courts are constrained by the mandatory prescribed . . . . Id. minimum[] at 108; [sentences] see also United Congress States v. McClellon, 578 F.3d 846, 861 (8th Cir. 2009) (rejecting equal protection and due process challenge to § 841 and stating that while there is proposed legislation in Congress that may remedy the problems in question, these actions remain mere proposals, 3 and it is not the province of this court to anticipate and implement what may or may not occur in Congress ). Johnson also seeks to challenge his sentence on Eighth Amendment grounds, arguing that the penalties for crack offenses are cruel harsh in and unusual comparison cocaine powder. the The proportionality sentences. to because Ewing penalties Eighth principle v. they are for Amendment that disproportionately offenses contains applies 538 California, involving a narrow to U.S. noncapital 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)). However, [t]his [C]ourt has held that proportionality review is not available for any sentence less than life imprisonment without the possibility of parole. United States v. Ming Hong, 242 2001). F.3d 528, proportionality 532 of (4th Johnson s Cir. sentence is Therefore, not reviewable the on appeal. Accordingly, sentence. we affirm Johnson s within-Guidelines See United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (holding that sentence within a properly calculated Guidelines range is reasonable). because the facts and legal are 4 We dispense with oral argument adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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