United States v. Kersey , 328 F. App'x 884 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBY LAVERNE KERSEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00371-JAB-1)
Submitted: June 11, 2009 Decided: July 15, 2009
Before TRAXLER, Chief Judge, and MICHAEL and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Winston-Salem, North Carolina, for Appellant. Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Laverne Kersey pled guilty, pursuant to a plea
agreement, to distribution of crack cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A) (2006). He was sentenced to 120
months’ imprisonment. Kersey’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying there are no meritorious issues for appeal but
arguing that the 100-to-1 disparity in sentencing between crack
and powder cocaine violates the equal protection clause. Kersey
was advised of the opportunity to file a pro se supplemental
brief and has not done so. We affirm.
Because this equal protection challenge was not raised
during sentencing, our review is for plain error. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). Under plain error review,
[A]n appellate court may correct an error not brought
to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness,
integrity, or public reputation of judicial
proceedings.
United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)
(internal quotation marks, citations, and alterations omitted).
Here, it is clear Kersey’s sentence did not violate
his equal protection rights. We have repeatedly held that the
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sentencing disparity between cocaine powder and crack offenses
does not violate either equal protection or due process. See
United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en
banc) (collecting cases and holding that § 841(b)(1)(A) has a
rational basis). In Burgos, we again outlined a rational basis
for the disparity between crack and powder cocaine:
Congress could rationally have concluded that
distribution of cocaine base is a greater menace to
society than distribution of cocaine powder and
warranted greater penalties because it is less
expensive and, therefore, more accessible, because it
is considered more addictive than cocaine powder and
because it is specifically targeted toward youth.
Id. at 877 (quoting United States v. Thomas, 900 F.2d 37, 39-40
(4th Cir. 1990)). Accordingly, Kersey’s equal protection claim
is without merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court requires that counsel inform his client, in writing,
of the right to petition the Supreme Court of the United States
for further review. If the client 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 was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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