US v. Darryl Nichols

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00063-CCB-1 Copies to all parties and the district court/agency. [998759388].. [10-4018]

Appeal: 10-4018

Document: 41

Date Filed: 01/06/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4018

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL NICHOLS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:09-cr-00063-CCB-1)

Submitted:

November 22, 2011

Decided:

January 6, 2012

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Meghan S. Skelton, Staff
Attorney,
Greenbelt,
Maryland,
for
Appellant.
Rod
J.
Rosenstein, United States Attorney, Clinton J. Fuchs, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darryl

Nichols

appeals

the

180-month

armed

career

criminal sentence imposed by the district court following his
guilty plea to possession of ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006).

On appeal, Nichols

primarily contends that the district court erred in designating
him

as

conflict

an

armed

between

career
the

criminal.

Armed

Career

Nichols
Criminal

also

asserts

Act’s

a

(ACCA)

mandatory minimum sentence and the general sentencing statute,
18 U.S.C. § 3553(a) (2006).

Finding no error, we affirm.

Nichols first argues that the district court erred in
finding that his conviction for resisting arrest was a violent
felony for purposes of the ACCA.

Nichols’ argument, however, is

foreclosed by our decision in United States v. Jenkins, 631 F.3d
680, 685 (4th Cir. 2011) (holding that Maryland common law crime
of resisting arrest is crime of violence for purposes of career
offender enhancement). 1

It is axiomatic that “[a] panel of this

court cannot overrule, explicitly or implicitly, the precedent
set by a prior panel of this court.
1

Only the Supreme Court or

Because “[t]he ACCA defines ‘violent felony’ in a manner
substantively identical to the definition of a ‘crime of
violence’ in [U.S. Sentencing Guidelines Manual] § 4B1.2,”
precedent defining either term applies with equal force to the
other term. United States v. Jarmon, 596 F.3d 228, 231 n.* (4th
Cir.), cert. denied, 131 S. Ct. 145 (2010).

2

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this court sitting en banc can do that.”
Rivers,

595

F.3d

558,

564

quotation marks omitted).

n.3

(4th

United States v.

Cir.

2010)

(internal

Nothing in the Supreme Court’s recent

decision in Sykes v. United States, 131 S. Ct. 2267 (2011),
leads

us

Therefore,

to
we

conclude

that

conclude

Jenkins

that

the

is

no

longer

district

good

court

law.

properly

sentenced Nichols as an armed career criminal. 2
Nichols also argues that the ACCA’s mandatory minimum
sentencing scheme conflicts with § 3553(a)’s mandate to “impose
a sentence sufficient, but not greater than necessary” in light
of that section’s enumerated purposes.

The Sentencing Reform

Act, of which § 3553(a) is a part, provides that a defendant
should be sentenced in accordance with its provisions to achieve
the purposes of § 3553(a)(2) “[e]xcept as otherwise specifically
provided.”

18 U.S.C. § 3551(a) (2006).

Every appellate court

to have authoritatively addressed this issue has concluded that
statutes setting out a mandatory minimum sentence fall within
the “[e]xcept as otherwise specifically provided” clause and do
See United States v. Luong, 627

not conflict with § 3553(a).

F.3d 1306, 1312 (9th Cir. 2010), cert. denied, __ U.S. __, 80
U.S.L.W.

3185

(U.S.

Oct.

3,

2011)

2

(No.

10-10885);

United

Nichols does not dispute that he has two qualifying drug
offenses.

3

Appeal: 10-4018

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States v.
States

Sutton,

v.

Grober,

Date Filed: 01/06/2012

625
624

F.3d

526,

F.3d

592,

529
611

Page: 4 of 5

(8th

Cir.

2010);

United

(3d

Cir.

2010);

United

States v. Samas, 561 F.3d 108, 110-11 (2d Cir. 2009); United
States v. Franklin, 499 F.3d 578, 585 (6th Cir. 2007).
Moreover, following the issuance of United States v.
Booker, 543 U.S. 220 (2005), the Supreme Court has reiterated
that, although the Guidelines are now advisory, “courts remain
bound by [statutory] mandatory minimum sentences.”

Kimbrough v.

United States, 552 U.S. 85, 107 (2007); see United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005) (“Booker did nothing
to alter the rule that judges cannot depart below a statutorily
provided minimum sentence.

Except upon motion of the Government

on the basis of substantial assistance, a district court still
may not depart below a statutory minimum.”) (citing 18 U.S.C.
§ 3553(e) (2006)).

“Courts have uniformly rejected the claim

that § 3553(a)’s ‘no greater than necessary’ language authorizes
a

district

court

to

sentence

below

the

statutory

minimum.”

United States v. Cirilo-Muñoz, 582 F.3d 54, 55 (1st Cir. 2009)
(collecting

cases).

We

therefore

conclude

that

Nichols’

argument is meritless.
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

4

because

the

facts

and

legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

5