US v. Bobby Gilyard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cr-00274-HMH-1. Copies to all parties and the district court/agency. [998412000] [09-5073]

US v. Bobby Gilyard

Doc. 0

Case: 09-5073 Document: 55

Date Filed: 08/26/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5073 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. BOBBY MICHAEL GILYARD, a/k/a Big Mike, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:09-cr-00274-HMH-1) Submitted: August 19, 2010 Decided: August 26, 2010

Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Everett P. Godfrey, Jr., GODFREY LAW FIRM LLC, Greenville, South Carolina, for Appellant. Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 09-5073 Document: 55

Date Filed: 08/26/2010

Page: 2

PER CURIAM: Bobby Gilyard pled guilty pursuant to a written plea agreement to of possession fifty with or intent more of to distribute base and a

distribution

grams

cocaine

and

quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(D) (2006). minimum He was sentenced of 240 to the

statutorily-mandated imprisonment.

sentence

months'

On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting, in his opinion, there are no meritorious grounds for appeal but raising the issue of under whether 21 the sentencing § 841 scheme the for Due cocaine Process error, base and we

offenses Equal

U.S.C. clauses.

violates no

Protection

Finding

reversible

affirm. Gilyard argues that the sentencing scheme under 21

U.S.C. § 841 as it relates to cocaine base is unconstitutional because it is not proportional to sentences for powder cocaine and therefore it violates his rights to due process and equal protection. Circuit States As counsel concedes, this issue is foreclosed by that 108 has not been 512, overruled. 518-19 (4th See Cir. United 1997)

precedent v.

Perkins,

F.3d

(rejecting equal protection challenge to the disparate statutory mandatory minimums applicable to crack cocaine and powder

cocaine offenses); United States v. Fisher, 58 F.3d 96, 99-100 2

Case: 09-5073 Document: 55

Date Filed: 08/26/2010

Page: 3

(4th Cir. 1995) (rejecting due process challenge to same). also Kimbrough v. United States, 552 U.S. 85, 108

See

(2007)

(recognizing that, although sentencing courts are free to reject the 100:1 crack/powder ratio used to calculate a defendant's Guidelines range, they are nonetheless "constrained by the

mandatory minimums Congress prescribed."). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We further reject Gilyard's arguments in his pro se We therefore affirm the district court's

supplemental brief. judgment. writing,

This court requires that counsel inform Gilyard, in of his right to petition the Supreme Court of the

United States for further review.

If Gilyard 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 Gilyard.

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

3