UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4642
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEA DAVON KELLY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:06-cr-01287-PMD)
Submitted: March 20, 2008 Decided: April 11, 2008
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina; John Charles Duane, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniea Kelly pled guilty pursuant to a written plea
agreement to one count of possession with intent to distribute five
grams or more of cocaine base (“Count One”), in violation of 21
U.S.C. § 841(a)(1), (b)(1)(c) (2000), and one count of use of a
firearm in furtherance of a drug trafficking crime (“Count Four”),
in violation of 18 U.S.C. § 924(c)(1)(A) (2000). The court
sentenced Kelly to a total of 147 months in prison, and Kelly
timely appealed. Kelly’s attorney filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious grounds for appeal, but questioning whether the
crack cocaine to powder cocaine disparity applied by the district
court in sentencing was unconstitutional. The Government did not
file a reply brief. Kelly was advised of his right to file a pro
se supplemental brief, but has not done so.
In accordance with our obligation under Anders, we have
reviewed Kelly’s conviction and find no reversible error. His
guilty plea was accepted after a properly-concluded Fed. R. Crim.
P. 11 hearing, and he does not contend that his plea was
involuntary. Accordingly, we affirm his conviction.
As to his sentence, Kelly argues that the crack cocaine
to powder cocaine disparity employed in sentencing is
unconstitutional. Kelly was sentenced to 87 months in prison on
Count One; the statutory range for the count is five years to forty
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years. 21 U.S.C. § 841(b)(1)(B). While the appeal was pending,
the Supreme Court issued Kimbrough v. United States, 128 S. Ct. 558
(2007), holding that “it would not be an abuse of discretion for a
district court to conclude when sentencing a particular defendant
that the crack/powder disparity yields a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case.” Id. at 575. In Kimbrough the Court remanded to permit the
district court to consider the appropriateness of applying the 100-
to-1 ratio of crack cocaine to powder cocaine in sentencing.
Accordingly, we vacate Kelly’s sentence and remand for the purpose
of allowing the court to resentence Kelly in accordance with
Kimbrough and U.S. Sentencing Guidelines Manual § 2D1.1 (2007)
(Amendment 706).
This court requires that counsel inform Kelly, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Kelly 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 Kelly.
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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 IN PART,
VACATED IN PART,
AND REMANDED
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