United States v. Benjamin

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 16, 2009
• Docket: 08-4348
• Status: Unpublished

Opinion

Filed: March 16, 2009

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4348 (2:07-cr-00297-PMD-1)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES BENJAMIN,

Defendant - Appellant.

O R D E R

The court amends its opinion filed November 25, 2008,

as follows:

On page 2, first paragraph, lines 4 and 5 --

“possession of a firearm by a convicted felon" is corrected to

read “possession of a firearm in furtherance of a drug

trafficking offense.”

On page 4, second full paragraph, line 2 – “felon in

possession of a firearm” is corrected to read “possession of a

firearm in furtherance of a drug trafficking offense.”

For the Court – By Direction

/s/ Patricia S. Connor Clerk UNPUBLISHED

No. 08-4348

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:07-cr-00297-PMD-1)

Submitted: November 20, 2008 Decided: November 25, 2008

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

Affirmed by unpublished per curiam opinion.

Mary Gordon Baker, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. John Charles Duane, Eric John Klumb, Assistant United States Attorneys, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

James Benjamin appeals his convictions and resulting

117-month sentence imposed for possession with intent to

distribute crack cocaine, powder cocaine, and a drug commonly

known as ecstasy, and possession of a firearm in furtherance of

a drug trafficking offense. Benjamin’s counsel has filed an

appeal under Anders v. California, 386 U.S. 738 (1967), raising

the issues of the voluntariness of his plea, the

constitutionality of the crack cocaine to powder cocaine

sentencing ratio, and the reasonableness of his sentence. The

Government declined to file a brief. Benjamin has filed a pro se

supplemental brief. Finding no error, we affirm.

In the absence of a motion to withdraw a guilty plea,

we review the adequacy of the guilty plea pursuant to Fed. R.

Crim. P. 11 for plain error. United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002). A review of the transcript of

Benjamin’s guilty plea hearing reveals that the district court

fully complied with the requirements of Rule 11. Benjamin’s

plea was knowingly, voluntarily, and intelligently made, with

full knowledge of the consequences attendant to his guilty plea.

He was fully informed of the statutory minimum and maximum

sentences. We therefore find that Benjamin’s guilty plea was

valid.

2 Counsel argues that the minimum sentences set forth in

21 U.S.C. § 841 (2000) and U.S. Sentencing Guidelines Manual

§ 2D1.1 (2007) create an unconstitutional disparity between

sentences for crack and powder cocaine, in violation of the

Equal Protection Clause. However, as counsel correctly

acknowledges in the Anders brief, this court has held that the

disparity does not violate equal protection principles. United

States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995) (sentencing

ratio under 21 U.S.C. § 841 does not deny defendants equal

protection in violation of the Due Process Clause of the Fifth

Amendment); United States v. Jones, 18 F.3d 1145, 1151 (4th Cir.

1994) (sentencing disparity under the Sentencing Guidelines does

not violate the Equal Protection Clause); United States v.

D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994) (disparity under USSG

§ 2D1.1 not sufficient to trigger an equal protection

violation).

Counsel also suggests that the mandatory minimum

sentences in 21 U.S.C. § 841 should not survive judicial

scrutiny in light of recent amendments to the Sentencing

Guidelines that lowered the offense levels for drug offenses

involving crack cocaine, see USSG § 2D1.1(c) (2007 & Supp.

2008); USSG App. C Amend. 706, 711, and the decision in

Kimbrough v. United States, 128 S. Ct. 558 (2007). However, as

the Supreme Court observed in Kimbrough, after the Guideline

3 amendments, “sentencing courts remain bound by the mandatory

minimum sentences prescribed [by statute].” Kimbrough, 128 S.

Ct. at 573. Because Benjamin was sentenced to a statutory

mandatory minimum term of imprisonment for the drug offense,

this claim is without merit.

Finally, counsel questions the reasonableness of

Benjamin’s sentence, but concludes that there was no sentencing

error. A sentence is reviewed for abuse of discretion, Gall v.

United States, 128 S. Ct. 586, 597 (2007), with the review

encompassing both procedural soundness and substantive

reasonableness. Id. Applying a presumption of reasonableness

to the Guidelines sentence, see United States v. Go, 517 F.3d

216, 218 (4th Cir. 2008); see also Rita v. United States, 127 S.

Ct. 2456, 2462-69 (2007) (upholding presumption of

reasonableness for within-Guidelines sentence), we conclude that

Benjamin has not rebutted the presumption of reasonableness and

that his sentence is reasonable.

Benjamin’s pro se supplemental brief challenges his

possession of a firearm in furtherance of a drug trafficking

offense conviction, contends that his sentence is excessive for

the crime, and alleges that counsel was ineffective for failing

to inform him of the elements of the 18 U.S.C. § 924(c) (2006)

offense. After reviewing the record, we find no merit in these

claims.

4 In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Benjamin’s convictions and

sentence. This court requires that counsel inform her client,

in writing, of his 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 presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED