US v. James Benjamin

Filing 920090316

Filed: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

March 16, 2009

No. 08-4348 (2:07-cr-00297-PMD-1)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES BENJAMIN, Defendant - Appellant.

O R D E R

The court amends its opinion filed November 25, 2008, as follows: On page 2, first paragraph, lines 4 and 5 --

"possession of a firearm by a convicted felon" is corrected to read "possession of a firearm in furtherance of a drug

trafficking offense." On page 4, second full paragraph, line 2 ­ "felon in possession of a firearm" is corrected to read "possession of a firearm in furtherance of a drug trafficking offense." For the Court ­ By Direction /s/ Patricia S. Connor Clerk

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4348

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES BENJAMIN, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:07-cr-00297-PMD-1)

Submitted:

November 20, 2008

Decided:

November 25, 2008

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mary Gordon Baker, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. John Charles Duane, Eric John Klumb, Assistant United States Attorneys, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: James Benjamin appeals his convictions and resulting 117-month sentence imposed for possession with intent to

distribute crack cocaine, powder cocaine, and a drug commonly known as ecstasy, and possession of a firearm in furtherance of a drug trafficking offense. Benjamin's counsel has filed an

appeal under Anders v. California, 386 U.S. 738 (1967), raising the issues of the of voluntariness the crack of to his plea, the

constitutionality

cocaine

powder

cocaine The

sentencing ratio, and the reasonableness of his sentence.

Government declined to file a brief. Benjamin has filed a pro se supplemental brief. Finding no error, we affirm.

In the absence of a motion to withdraw a guilty plea, we review the adequacy of the guilty plea pursuant to Fed. R. Crim. P. 11 for plain error. F.3d 517, 525 (4th Cir. 2002). United States v. Martinez, 277 A review of the transcript of

Benjamin's guilty plea hearing reveals that the district court fully complied with the requirements of Rule 11. Benjamin's

plea was knowingly, voluntarily, and intelligently made, with full knowledge of the consequences attendant to his guilty plea. He was fully informed of the statutory minimum and maximum

sentences. valid.

We therefore find that Benjamin's guilty plea was

2

Counsel argues that the minimum sentences set forth in 21 U.S.C. § 841 (2000) and U.S. Sentencing Guidelines Manual § 2D1.1 sentences Equal (2007) for create crack and an unconstitutional cocaine, in disparity violation counsel between of the

powder

Protection

Clause.

However,

as

correctly

acknowledges in the Anders brief, this court has held that the disparity does not violate equal protection principles. United

States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995) (sentencing ratio under 21 U.S.C. § 841 does not deny defendants equal

protection in violation of the Due Process Clause of the Fifth Amendment); United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994) (sentencing disparity under the Sentencing Guidelines does not violate the Equal Protection Clause); United States v.

D'Anjou, 16 F.3d 604, 612 (4th Cir. 1994) (disparity under USSG § 2D1.1 not sufficient to trigger an equal protection

violation). Counsel sentences scrutiny in in 21 light also suggests § 841 recent that should the not to mandatory survive the minimum judicial Sentencing

U.S.C. of

amendments

Guidelines that lowered the offense levels for drug offenses involving 2008); crack cocaine, C see USSG 706, § 711, 2D1.1(c) and (2007 & Supp. in

USSG

App.

Amend.

the

decision

Kimbrough v. United States, 128 S. Ct. 558 (2007).

However, as

the Supreme Court observed in Kimbrough, after the Guideline 3

amendments,

"sentencing

courts

remain

bound

by

the

mandatory

minimum sentences prescribed [by statute]." Ct. at 573. Because Benjamin was

Kimbrough, 128 S. to a statutory

sentenced

mandatory minimum term of imprisonment for the drug offense, this claim is without merit. Finally, counsel questions the reasonableness of

Benjamin's sentence, but concludes that there was no sentencing error. United A sentence is reviewed for abuse of discretion, Gall v. States, 128 both Id. S. Ct. 586, 597 (2007), with and the review

encompassing reasonableness.

procedural

soundness

substantive

Applying a presumption of reasonableness

to the Guidelines sentence, see United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of

reasonableness for within-Guidelines sentence), we conclude that Benjamin has not rebutted the presumption of reasonableness and that his sentence is reasonable. Benjamin's pro se supplemental brief challenges his

possession of a firearm in furtherance of a drug trafficking offense conviction, contends that his sentence is excessive for the crime, and alleges that counsel was ineffective for failing to inform him of the elements of the 18 U.S.C. § 924(c) (2006) offense. claims. 4 After reviewing the record, we find no merit in these

In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. sentence. We therefore affirm Benjamin's convictions and

This court requires that counsel inform her 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, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must We dispense

state that a copy thereof was served on the client.

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