United States v. Rosemond

378 F. App'x 334

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 21, 2010
• Docket: 09-4635, 09-4782
• Status: Unpublished

Opinion

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Michael Angelo Rosemond pled guilty to possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2006), and possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He was sentenced to sixty months in prison. Lenny Joe Rosemond pled guilty to one count of possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). He was sentenced to seventy-seven months in prison, the low end of his advisory Guidelines range. The Rosemonds now appeal their sentences on the drug charges. We affirm.

The Rosemonds argue that the statutory sentencing disparity between cocaine base and cocaine powder is unconstitutional. We repeatedly have rejected claims that the sentencing disparity between powder cocaine and crack offenses violates either equal protection or due process. See, e.g., United States v. Perkins, 108 F.3d 512, 518-19 & n. 34 (4th Cir.1997); United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir.1996) (en banc). To the extent that the Rosemonds seek to have us reconsider these decisions, a panel of this court cannot overrule the decision of a prior panel. United States v. Simms, 441 F.3d 313, 318 (4th Cir.2006). The Rosemonds’ contention that our prior precedents are overruled by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), is incorrect. Id. at 107, 128 S.Ct. 558 (holding that sentencing courts are bound by the disparate statutory terms of imprisonment for powder cocaine and cocaine base, notwithstanding district court’s discretion to depart from advisory Sentencing Guidelines ranges based on the disparity).

Accordingly, we affirm the district court’s judgments as to both Michael Rosemond and Lenny Rosemond. 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.