US v. Barry Tunstalle, No. 08-4710 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4710 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BARRY TUNSTALLE, Defendant Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cr-00014-TEJ-1) Submitted: April 30, 2009 Decided: December 15, 2009 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Lex A. Coleman, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Miller A. Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Barry Tunstalle pled guilty in 2007 to distributing cocaine base (crack) and was sentenced within the range to a term of fifty-five months imprisonment. guideline On appeal, we vacated the sentence and remanded for resentencing in light of Kimbrough v. United States, 552 U.S. 85 (2007). See United States v. Tunstalle, 266 F. App x 291 (4th Cir. 2008). On remand, the district court applied the revised guidelines for crack offenses and recalculated Tunstalle s advisory guideline range as 37-46 months. The court then imposed a thirty-two- month variance sentence pursuant to 18 U.S.C. § 3553(a) (2006), in view of Tunstalle s criminal history. relative youth and relative lack of In this appeal, Tunstalle contends that the sentence violates his Fifth Amendment substantive due process rights because the statutory sentencing scheme and the sentencing guidelines for crack offenses, which provide harsher sentences than for powder cocaine offenses, are not rationally related to a legitimate government interest. Tunstalle argues that our prior We affirm. decisions upholding the statutory sentencing scheme for crack offenses should not control because they addressed equal protection claims, while he is seeking to vindicate his individual due process right not to be subject to an arbitrary and irrational sentencing scheme. However, we have rejected claims that the sentencing disparity 2 between powder cocaine and crack offenses lacks a rational basis. See United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (holding that § 841(b) has a rational basis); United States v. Thomas, 900 F.2d 37 (4th Cir. 1990) (same). While Tunstalle maintains that data collected since Thomas was decided has eroded the factual support for its holding, he concedes that does Kimbrough challenging. Circuit has not call into question the disparity he is Moreover, since Kimbrough was decided, the Second affirmed constitutionality of its own § 841(b) prior in a decisions case where upholding the the appellant claimed that § 841(b) violates the equal protection component of the Fifth Amendment s Due Process Clause because there is no rational basis for the disparity between sentences for powder and crack cocaine. United States v. Samas, 561 F.3d 108, 109 (2d Cir. 2009). We district facts court. and materials therefore legal before We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 3
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