US v. Brian Jordan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00258-TDS-2 Copies to all parties and the district court/agency. [998406121] [09-4715]

US v. Brian Jordan

Doc. 0

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Date Filed: 08/18/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4715 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN JEROME JORDAN, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:07-cr-00258-TDS-2) Submitted: July 13, 2010 Decided: August 18, 2010

Before WILKINSON, KING, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Carlyle Sherrill, III, SHERRILL & CAMERON, Salisbury, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Brian Jerome Jordan pled guilty, pursuant to a plea agreement, to distribution of 57.66 grams of crack cocaine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A) (2006) and 18 U.S.C. § 2 (2006).

Prior to the plea

hearing, the Government filed two notices of prior felony drug convictions pursuant to 21 U.S.C. § 851 (2006), but withdrew one of the notices prior to sentencing in accordance with the plea agreement. The district court sentenced Jordan to the statutory

minimum of 240 months of imprisonment, ten years of supervised release, and a $100 special assessment. Jordan timely appealed.

On appeal, counsel filed a brief pursuant to Anders v. California, meritorious 386 U.S. 738 (1967), stating that there are no the

issues

for

appeal,

but

questioning

whether

district court erred in sentencing Jordan to a longer term of imprisonment than he would have received for an equal quantity of powder cocaine, because application of the statutory In his

mandatory minimum violated Jordan's due process rights.

pro se supplemental brief, Jordan argues that the district court erred in using his 1993 juvenile conviction to increase his

statutory sentencing range, and that his plea was involuntary because the court failed to explain how this conviction would increase his sentence. He also asserts that the court erred in

using six state misdemeanor convictions to increase his criminal 2

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history

score,

and

that

the and

court's powder

disregard

of

the

gross was an

disparity

between

crack

cocaine

sentences

abuse of discretion. The

The Government declined to file a brief. of a federal statute is a

constitutionality

question of law that is reviewed de novo. Buculei, 262 F.3d 322, 327 (4th Cir. 2001). rejected claims that the sentencing

United States v. We repeatedly have between powder

disparity

cocaine and crack offenses violates either equal protection or due process. See United States v. Perkins, 108 F.3d 512, 518-19

& n.34 (4th Cir. 1997) (citing cases); United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en banc). To the extent

that Jordan seeks to have this court reconsider these decisions, a panel of this court cannot overrule the decision of a prior panel. 2005). Counsel acknowledges that this court has rejected the due process argument be in he asserts, but in contends light of that the 552 these Supreme U.S. did 85 not United States v. Collins, 415 F.3d 304, 311 (4th Cir.

precedents Court's (2007). analyze

should

reconsidered Kimbrough v.

decision In the

United the

States,

Kimbrough, statutory

however, minimum

Supreme for

Court crack

sentences

cocaine

offenses, but rather held that a district court may consider the crack-powder disparity in the Sentencing Guidelines as a basis for imposing a lesser sentence 3 in a crack cocaine case.

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Kimbrough, 552 U.S. at 109-11. to crack cocaine sentences

The Court also stated that "as in particular, we note a

congressional control on disparities: district Congress courts are constrained in the 1986 by

possible variations among the mandatory Id. at minimums "[A]

prescribed

Act."

108.

district court has no discretion to impose a sentence outside of the statutory range established by Congress for the offense of conviction," unless the Government moves for a departure based on the defendant's substantial assistance. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). United States v. In this case, the

Government did not move for a departure, and thus the statutory minimum applied. Our review of the record leads us to conclude

that the district court properly imposed the statutory minimum twenty-year sentence, which is reasonable. Farrior, 535 F.3d 210, 224 (4th Cir. See United States v. ("A statutorily

2008)

required sentence . . . is per se reasonable."). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We have considered the arguments asserted in Jordan's pro se supplemental relief. brief and conclude they do not entitle him to

We therefore affirm Jordan's conviction and sentence.

This court requires that counsel inform Jordan, in writing, of the right to petition the Supreme Court of the United States for further review. If Jordan requests that a petition be filed, 4

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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

was served on Jordan. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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