US v. Bobby Gilyard, No. 09-5073 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5073 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BOBBY MICHAEL GILYARD, a/k/a Big Mike, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:09-cr-00274-HMH-1) Submitted: August 19, 2010 Decided: August 26, 2010 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Everett P. Godfrey, Jr., GODFREY LAW FIRM LLC, Greenville, South Carolina, for Appellant. Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bobby Gilyard pled guilty pursuant to a written plea agreement to distribution possession of fifty with grams or intent more to of distribute cocaine base and and a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(D) (2006). statutorily-mandated imprisonment. He minimum was sentenced of sentence to months 240 the On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting, in his opinion, there are no meritorious grounds for appeal but raising the issue offenses Equal of whether under 21 Protection the U.S.C. sentencing § 841 clauses. scheme violates Finding no the for cocaine Due base Process reversible and error, we under 21 affirm. Gilyard argues that the sentencing scheme U.S.C. § 841 as it relates to cocaine base is unconstitutional because it is not proportional to sentences for powder cocaine and therefore it violates his rights to due process and equal protection. Circuit States As counsel concedes, this issue is foreclosed by precedent v. that Perkins, 108 has not F.3d been 512, overruled. 518-19 (4th See United 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 2 (4th Cir. 1995) (rejecting due process challenge to same). also Kimbrough v. United States, 552 U.S. 85, 108 See (2007) (recognizing that, although sentencing courts are free to reject the 100:1 crack/powder ratio used to calculate a defendant s Guidelines range, they are nonetheless constrained by the mandatory minimums Congress prescribed. ). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We further reject Gilyard s arguments in his pro se supplemental brief. judgment. writing, We therefore affirm the district court s This court requires that counsel inform Gilyard, in of his right to petition United States for further review. the Supreme Court of the If Gilyard requests that a petition be filed, 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 Gilyard. 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 3
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