US v. Adrian Davie

Filing 920090323

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4744

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ADRIAN DAVIE, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:07-cr-00051-1)

Submitted:

March 3, 2009

Decided:

March 23, 2009

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.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, Lisa G. Johnston, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Adrian Davie pled guilty to possession with intent to distribute crack cocaine. fifty-seven Sentencing months. months of The district court sentenced Davie to imprisonment range of based on to an advisory

Guidelines

fifty-seven

seventy-one

We vacated and remanded Davie's sentence in light of See United On remand,

Kimbrough v. United States, 128 S. Ct. 558 (2007). States v. Davie, 278 F. App'x 266 (4th Cir. 2008).

the district court again calculated Davie's sentencing range as fifty-seven to seventy-one months but the court departed

downward and imposed a sentence of forty-five months. Davie timely appeals raising two issues: (1) whether the district court erred by enhancing his sentence for

possession of a firearm under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2007); and (2) whether the sentence violated his substantive due process rights. For the reasons that follow, we affirm. First, we find no clear error in the district court's decision to enhance Davie's sentence for the loaded gun found in the vehicle he was driving. F.3d 228, 234 claims (4th that Cir. the United States v. McAllister, 272 Second, we have repeatedly powder

2001).

rejected

sentencing

disparity

between

cocaine and crack offenses violates either equal protection or

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due process.

See United States v. Burgos, 94 F.3d 849, 876-77

(4th Cir. 1996) (collecting cases). Accordingly, we affirm Davie's sentence. 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

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