United States v. Jason Whitney

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 2, 2020
• Docket: 19-4625
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4625

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JASON CLIFTON WHITNEY, a/k/a Fat J,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, District Judge. (7:18-cr-00128-FL-1)

Submitted: March 17, 2020 Decided: April 2, 2020

Before KEENAN, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jason Clifton Whitney pled guilty pursuant to a plea agreement to possession with

intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (2018), and possession

of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A) (2018). The district court sentenced Whitney to 27 months’ imprisonment

on the marijuana possession count and a consecutive term of 60 months’ imprisonment on

the § 924(c) firearm count. On appeal, Whitney’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues

for appeal, but questioning whether the mandatory 60-month consecutive sentence

applicable to Whitney’s § 924(c) firearm conviction violates the Eighth Amendment and

the Equal Protection and Due Process Clauses of the Constitution. Whitney was informed

of his right to file a pro se supplemental brief, but he has not done so. The Government

elected not to file a brief and does not seek to enforce the appeal waiver in Whitney’s plea

agreement. * We affirm.

Counsel’s challenge to Whitney’s § 924(c) sentence—raised for the first time on

appeal and thus subject to review for plain error only, United States v. Walker, 934 F.3d

375, 378 (4th Cir. 2019)—is foreclosed. See United States v. Khan, 461 F.3d 477, 495

(4th Cir. 2006) (rejecting argument that lengthy sentences imposed by § 924(c) “are so

* Because the Government fails to assert the appeal waiver as a bar to this appeal, we may consider the issue raised by counsel and conduct an independent review of the record pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).

2 long as to constitute a violation of due process, equal protection, and the Eighth

Amendment prohibition against Cruel and Unusual punishment”). Whitney thus fails to

establish plain error in this regard. Further, in accordance with Anders, we have reviewed

the record in this case and have found no meritorious issues for appeal. We therefore affirm

the criminal judgment.

This court requires that counsel inform Whitney, in writing, of the right to petition

the Supreme Court of the United States for further review. If Whitney 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 Whitney.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED