US v. Grady Rushing, No. 09-5036 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5036 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GRADY LEE RUSHING, Defendant - Appellant.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 Before MOTZ and Circuit Judge. SHEDD, Decided: Circuit Judges, and August 20, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 unreasonable. renders Rushing s sentence procedurally 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 reasonableness, this applying court abuse an reviews of a sentence discretion for 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 consideration of reasonableness of (2009). 1 both a This the review procedural sentence. Gall, 552 requires and U.S. United States v. Booker, 543 U.S. 220 (2005). 2 appellate substantive at 51. In determining procedural reasonableness, we consider whether the district court Guidelines properly range, calculated considered the the 18 defendant s U.S.C. § advisory 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. 51. Gall, 552 U.S. at Regardless of whether the district court imposes an above, below, or within-Guidelines record an individualized sentence, assessment it must based on place the on the particular United States v. Carter, 564 F.3d facts of the case before it. 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 disagree. As the Supreme Court United States, 552 U.S. courts are free, cocaine/powder Guidelines they ratio are recognized 108 post-Booker, cocaine range, 85, mandatory (2007), to in nonetheless 3 in We Kimbrough v. although reject terms minimum. the of a sentencing 100:1 crack defendant s constrained by the mandatory minimums issue foreclosed is overruled. Congress by prescribed. Circuit Furthermore, precedent that has this not been 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 minimum factors sentence that informed mandated by its decision statute. See Lynn, 592 F.3d 572, 576 (4th Cir. 2010) to United impose the States v. 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 Accordingly, we 11 affirm in accepting the district 2 Rushing s court s guilty plea. judgment. This 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). 4 court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If counsel the client believes requests that such that a a petition petition would be 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 5
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