US v. Brian Jordan, No. 09-4715 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4715 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN JEROME JORDAN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:07-cr-00258-TDS-2) Submitted: July 13, 2010 Decided: August 18, 2010 Before WILKINSON, KING, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Carlyle Sherrill, III, SHERRILL & CAMERON, Salisbury, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brian Jerome Jordan pled guilty, pursuant to a plea agreement, to distribution of 57.66 grams of crack cocaine and aiding and abetting, in violation of 21 (b)(1)(A) (2006) and 18 U.S.C. § 2 (2006). U.S.C. § 841(a)(1), Prior to the plea hearing, the Government filed two notices of prior felony drug convictions pursuant to 21 U.S.C. § 851 (2006), but withdrew one of the notices prior to sentencing in accordance with the plea agreement. The district court sentenced Jordan to the statutory minimum of 240 months of imprisonment, ten years of supervised release, and a $100 special assessment. Jordan timely appealed. On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. meritorious issues 738 for (1967), appeal, stating but that there questioning are whether no the district court erred in sentencing Jordan to a longer term of imprisonment than he would have received for an equal quantity of powder cocaine, because application of the statutory mandatory minimum violated Jordan s due process rights. In his pro se supplemental brief, Jordan argues that the district court erred in using his 1993 juvenile conviction to increase his statutory sentencing range, and that his plea was involuntary because the court failed to explain how this conviction would increase his sentence. He also asserts that the court erred in using six state misdemeanor convictions to increase his criminal 2 history score, disparity and between that crack abuse of discretion. The the and court s powder disregard cocaine of the sentences gross was an The Government declined to file a brief. 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). To the extent that Jordan seeks to have this court reconsider these decisions, a panel of this court cannot overrule the decision of a prior panel. United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005). Counsel acknowledges that this court has rejected the due process precedents Court s (2007). analyze argument should decision In the be in he asserts, reconsidered Kimbrough Kimbrough, statutory v. however, minimum but in contends light United the of the States, 552 Supreme sentences that for Court these Supreme U.S. did crack 85 not cocaine offenses, but rather held that a district court may consider the crack-powder disparity in the Sentencing Guidelines as a basis for imposing a lesser sentence 3 in a crack cocaine case. Kimbrough, 552 U.S. at 109-11. The Court also stated that as to in crack cocaine sentences particular, congressional control on disparities: district courts are Congress prescribed constrained in the 1986 we note a possible variations among by the Act. mandatory Id. at minimums 108. [A] district court has no discretion to impose a sentence outside of the statutory range established by Congress for the offense of conviction, unless the Government moves for a departure based on the defendant s substantial assistance. United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). In this case, the Government did not move for a departure, and thus the statutory minimum applied. Our review of the record leads us to conclude that the district court properly imposed the statutory minimum twenty-year sentence, which is reasonable. Farrior, 535 F.3d 210, 224 (4th Cir. See United States v. 2008) ( A statutorily required sentence . . . is per se reasonable. ). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We have considered the arguments asserted in Jordan s pro se supplemental relief. brief and conclude they do not entitle him to We therefore affirm Jordan s conviction and sentence. This court requires that counsel inform Jordan, in writing, of the right to petition the Supreme Court of the United States for further review. If Jordan requests that a petition be filed, 4 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 Jordan. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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