US v. William Nelson

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00429-JAB-4 Copies to all parties and the district court/agency. [998468319] [09-4297]

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US v. William Nelson Doc. 0 Case: 09-4297 Document: 60 Date Filed: 11/18/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4297 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM KEITH NELSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00429-JAB-4) Submitted: October 25, 2010 Decided: November 18, 2010 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Seth R. Cohen, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro, North Carolina, for Appellant. John W. Stone, Jr., Acting United States Attorney, Angela H. Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 09-4297 Document: 60 Date Filed: 11/18/2010 Page: 2 PER CURIAM: William Keith Nelson appeals his conviction and 120month sentence following his guilty plea to distribution of 56.4 grams of crack cocaine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A) (2006). Nelson's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether Nelson's sentence to the statutory mandatory minimum term of imprisonment was reasonable. reconsider and overrule its Counsel requests that the court decision in United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), to allow a district court discretion to depart from the statutorily mandated minimum sentence. briefs In addition, counsel and Nelson filed supplemental the indictment and Nelson's conviction challenging because the Assistant United States Attorney who prosecuted the case in the district court had previously had his law license suspended. Counsel also requests remand for resentencing in light of recent legislation addressing crack cocaine sentencing disparities. To reconsider Finding no reversible error, we affirm. the extent Nelson in seeks to have the this court of a our prior holding Robinson, decision prior panel is binding "unless it is overruled by a subsequent en banc opinion of the court or a superseding contrary decision 2 Case: 09-4297 Document: 60 Date Filed: 11/18/2010 Page: 3 of the Supreme Court. 311 (4th Cir. 2005). United States v. Collins, 415 F.3d 304, Consequently, we conclude that the district court possessed no discretion to sentence Nelson below the statutory by 21 minimum U.S.C. sentence of 120 months' (2006), is per imprisonment and se that the mandated 841(b)(1)(A) sentence statutorily mandated minimum reasonable. We United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). reject Nelson's request to remand for resentencing, as the Fair Sentencing Act of 2010, which amended the penalty provisions of 21 U.S.C. 841(b) by increasing the quantities of crack cocaine required to trigger mandatory minimum sentences, does not apply retroactively. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372; United States v. Gomes, ___ F.3d ___, 2010 WL 3810872 __ (11th __, Cir. 2010 Oct. WL 1, 2010); United Cir. States Sept. v. 20, Carradine, 2010). F.3d 3619799 (6th Finally, review of the record indicates that Nelson has failed to establish a violation of his constitutional right to due process of law or prejudice warranting reversal of the district court's judgment had arising had his from the fact to that the law Government's suspended. attorney license practice Therefore, Nelson is not entitled to dismissal of the indictment or relief from his conviction and sentence. 3 Case: 09-4297 Document: 60 Date Filed: 11/18/2010 Page: 4 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Nelson's conviction and sentence. This court requires that counsel inform Nelson, in writing, of the right to petition the Supreme Court of the United States for further review. If he 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 state that a copy thereof We dispense with oral argument because was served on Nelson. the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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