US v. Nicholas Frazier

Filing 920081201


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4557 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NICHOLAS JAMAL FRAZIER, Defendant -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 Affirmed by unpublished per curiam opinion.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 Peter Thomas Attorney, Charleston, South Unpublished opinions are not binding precedent in this circuit.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 We affirm. whether the supplemental brief, but he has not done so. In the Anders brief, counsel questions 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 plea of and Fed. R. Crim. any P. 11 in accepting not Frazier's his guilty that omissions did affect substantial rights. district court Further, the transcript reveals that the that Frazier entered his guilty plea ensured 2 intelligently, voluntarily, and knowingly, with a full understanding of the consequences of his plea. We offense, turn next to Frazier's sentence. range For was the drug Frazier's advisory Guidelines initially calculated at 57 to 71 months' imprisonment. 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 of the Equal we Protection have Clause. However, as counsel acknowledges, previously rejected similar See constitutional challenges to the statute and Guidelines. 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 in argues 841 3 that should the not statutory survive minimum judicial contained scrutiny in light of recent amendments to the Sentencing Guidelines that lowered the offense levels for drug offenses involving 2008); crack cocaine, C see USSG 706, 2D1.1(c) 711; and (2007 & Supp. in USSG App. Amend. the decision Kimbrough v. United States, 128 S. Ct. 558 (2007). the Supreme Court recently observed in Kimbrough, remain However, as after by the the Guideline mandatory Kimbrough, amendments, minimum 128 S. "sentencing sentences courts bound prescribed Accordingly, [by this statute]." claim is Ct. at 573. without merit. We applying an review abuse a of criminal discretion sentence for reasonableness, Gall v. United standard. 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. 517 F.3d at 218. Here, Frazier's the district Guidelines court range of correctly 60 to calculated 71 months' Go, advisory imprisonment for the drug offense and sentenced Frazier to 60 months' imprisonment, the minimum required by statute and within the applicable Guideline range. 4 Frazier's consecutive 60-month 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). sentence is reasonable. We have examined the entire record in this case in accordance meritorious district with the requirements for appeal. This of Anders, and we we find no the to United States v. Farrior, 535 F.3d 210, Accordingly, we conclude that Frazier's issues Accordingly, court affirm counsel court's judgment. requires 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 are and adequately argument presented not in aid the the materials decisional contentions the court would process. AFFIRMED 5

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