US v. Nicholas Frazier, No. 08-4557 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4557 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NICHOLAS JAMAL FRAZIER, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:07-cr-00858-DCN-1) Submitted: November 6, 2008 Decided: December 1, 2008 Before MICHAEL, TRAXLER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Gordon Baker, Assistant Charleston, South Carolina, for Phillips, Assistant United States Carolina, for Appellee. Federal Public Defender, Appellant. Peter Thomas Attorney, Charleston, South Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a plea agreement, Nicholas Jamal Frazier pled guilty to one count of possession with intent to distribute cocaine and five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000), and one count of using and carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006). Frazier was sentenced to 60 months imprisonment for the drug conviction and received a consecutive 60-month prison sentence for the firearm conviction. He now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising three issues, but stating that there are no meritorious issues for appeal. Frazier was informed of his right to file a pro se supplemental brief, but he has not done so. In the brief, Anders counsel We affirm. questions whether the district court complied with the requirements of Fed. R. Crim. P. 11 in accepting Frazier s guilty plea, but concludes that it did. Our review of the transcript of the plea hearing leads us to conclude that the district court substantially complied with the mandates guilty plea of Fed. and substantial rights. district court R. that Crim. any P. 11 omissions in accepting did not Frazier s affect his Further, the transcript reveals that the ensured that Frazier 2 entered his guilty plea intelligently, voluntarily, and knowingly, with a full the drug understanding of the consequences of his plea. We offense, turn next Frazier s to Frazier s advisory sentence. Guidelines For range calculated at 57 to 71 months imprisonment. was initially However, because Frazier was subject to a statutory minimum term of five years imprisonment for this offense, see 21 U.S.C. § 841(b)(1)(B), his Guidelines range became 60 to 71 months imprisonment. Sentencing Guidelines Manual § 5G1.1(b) (2007). See U.S. The district court sentenced Frazier to 60 months imprisonment for the drug offense. The court also imposed the statutorily mandated consecutive five-year imprisonment term for the firearm offense. See 18 U.S.C. § 924(c)(1)(A)(i). Counsel contends that the minimum sentences contained in § 841 and USSG § 2D1.1 create an unconstitutional disparity between sentences for crack cocaine and powder cocaine offenses, in violation counsel of the Equal acknowledges, we Protection have Clause. previously However, rejected as similar constitutional challenges to the statute and Guidelines. See United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995); United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994); United States v. D Anjou, 16 F.3d 604, 613-14 (4th Cir. 1994). Counsel sentences also contained in argues that § 841 should 3 the not statutory minimum survive judicial scrutiny in light of recent amendments to the Sentencing Guidelines that lowered the offense levels for drug offenses involving 2008); crack USSG cocaine, App. C see Amend. USSG 706, § 2D1.1(c) 711; and (2007 the Supreme Court recently Guideline amendments, mandatory minimum 128 Kimbrough, S. observed sentencing at remain prescribed 573. after bound [by Accordingly, in However, as Kimbrough, courts sentences Ct. in Supp. decision Kimbrough v. United States, 128 S. Ct. 558 (2007). the & by the the statute]. this claim is without merit. We applying review an abuse a of criminal sentence discretion for standard. reasonableness, Gall v. United States, 128 S. Ct. 586, 594-97 (2007); United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). We must first determine whether the district court committed any significant procedural error. Gall, 128 S. Ct. at 597. We then consider the substantive reasonableness of the sentence, and may apply a presumption of reasonableness to a sentence within the Guidelines range. Go, 517 F.3d at 218. Here, Frazier s the advisory district court Guidelines range correctly of 60 to calculated 71 months imprisonment for the drug offense and sentenced Frazier to 60 months imprisonment, the minimum required by statute and within the applicable Guideline range. Frazier s consecutive 60-month 4 sentence for the firearm offense was also statutorily mandated. We recently observed that a statutorily required sentence . . . is per se reasonable. 224 (4th Cir. 2008). United States v. Farrior, 535 F.3d 210, Accordingly, we conclude that Frazier s sentence is reasonable. We have examined the entire record in this case in accordance meritorious district with the issues court s requirements for appeal. judgment. of Anders, and Accordingly, This court we we requires find no affirm the counsel to inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy of the motion was served on the client. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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