United States v. Davie , 319 F. App'x 206 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. The district court sentenced Davie to
fifty-seven months of imprisonment based on an advisory
Sentencing Guidelines range of fifty-seven to seventy-one
months. We vacated and remanded Davie’s sentence in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007). See United
States v. Davie, 278 F. App’x 266 (4th Cir. 2008). On remand,
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. United States v. McAllister, 272
F.3d 228, 234 (4th Cir. 2001). Second, we have repeatedly
rejected claims that the sentencing disparity between powder
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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