UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4680
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT LEONARD JONES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cr-00977-DCN)
Submitted: April 17, 2008 Decided: May 13, 2008
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. John Charles Duane, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Leonard Jones, Jr., appeals from his convictions
and 181-month sentence after pleading guilty to possession with
intent to distribute 50 grams or more of cocaine base and a
quantity of cocaine, in violation of 21 U.S.C.A. § 841(a)(1),
(b)(1)(A), (b)(1)(C) (West 1999 & Supp. 2007), and possession of a
firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(I) (2000). Jones’ counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which she
asserts that there are no meritorious issues for appeal, but asks
this court to review whether the district court complied with Fed.
R. Crim. P. 11 in accepting Jones’ guilty plea, whether the
Sentencing Guidelines and statutory mandatory minimum sentences for
crack cocaine offenses are unconstitutional, and whether Jones’
sentence was reasonable. Jones was given an opportunity to file a
pro se supplemental brief, but has not done so. For the reasons
stated below, we affirm Jones’ convictions, but vacate his sentence
and remand for resentencing.
Under Fed. R. Crim. P. 11(b)(1), the district court must
address the defendant in open court and inform him of the
following: the nature of the charge; any mandatory minimum sentence
and the maximum possible sentence; the applicability of the
Sentencing Guidelines; the court’s obligation to impose a special
assessment; the defendant’s right to an attorney; his right to
- 2 -
plead not guilty and be tried by a jury with the assistance of
counsel; his right to confront and cross-examine witnesses; his
right against self-incrimination; and his right to testify, present
evidence, and compel the attendance of witnesses. The defendant
also must be told that a guilty plea waives any further trial and
that his answers at the proceeding may be used against him in a
prosecution for perjury. Under Rule 11(b)(2), the court must
address the defendant to determine that the plea is voluntary. The
court must require disclosure of any plea agreement under Rule
11(c)(2) and determine a factual basis for the plea under Rule
11(b)(3). Because Jones did not move in the district court to
withdraw his guilty plea, his challenges to the Rule 11 hearing are
reviewed for plain error. See United States v. Martinez, 277 F.3d
517, 524-25 (4th Cir. 2002).
During the plea hearing, the district court properly
informed Jones of the rights he was forfeiting as a result of his
plea and the nature of the charges and penalties he faced, found
that Jones was competent and entering his plea voluntarily, and
determined there was a sufficient factual basis for the plea.
Therefore, the record establishes Jones knowingly and voluntarily
entered into his guilty plea with a full understanding of the
consequences and there was no error in the district court’s
acceptance of his plea.
- 3 -
As for Jones’ sentence, we review a district court’s
imposition of a sentence for abuse of discretion. Gall v. United
States, 128 S. Ct. 586, 597 (2007); see also United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court must first
ensure that the district court committed no procedural error, such
as “failing to calculate (or improperly calculating) the Guideline
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence - including an explanation for any deviation from the
Guideline range.” Gall, 128 S. Ct. at 597. If there are no
procedural errors, we then consider the substantive reasonableness
of the sentence. Id. “Substantive reasonableness review entails
taking into account the ‘totality of the circumstances, including
the extent of any variance from the Guidelines range.’” Pauley,
511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597).
After Jones was sentenced, the Supreme Court decided, in
Kimbrough v. United States, 128 S. Ct. 558 (2007), 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. Kimbrough thus
abrogated this court’s decision in United States v. Eura, 440 F.3d
625, 634 (4th Cir. 2006) (holding that 100:1 ratio cannot be the
- 4 -
basis of a variance), vacated, 128 S. Ct. 853 (2008). Furthermore,
on November 1, 2007, the United States Sentencing Commission
lowered the base offense level for drug offenses involving crack
cocaine. See U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1
(2007); USSG App. C, Supp. Amend. 706. This amendment has been
made retroactive, effective March 3, 2008, and would now be
applicable to Jones’ sentence. See USSG § 1B1.10(c) (Mar. 3,
2008).
At sentencing, Jones challenged the constitutionality of
the crack/powder cocaine ratio and requested a variance sentence;1
however, the district court did not have the benefit of the Supreme
Court’s decision in Kimbrough or the recent amendments to the crack
cocaine guidelines. Accordingly, to accord the district court an
opportunity to reconsider Jones’ sentence in light of Kimbrough and
1
Jones also contends that the relevant Sentencing Guidelines
and statutory mandatory minimum sentences for crack cocaine
offenses are unconstitutional under the Equal Protection Clause.
In light of the amendments to USSG § 2D1.1, Jones’ challenge to the
constitutionality of the Sentencing Guidelines is moot. As for
Jones’ constitutional challenge to the statutory mandatory minimum
sentences for crack cocaine offenses, this court has consistently
rejected such claims. See United States v. Perkins, 108 F.3d 512,
518 (4th Cir. 1997); United States v. Burgos, 94 F.3d 849, 876-77
(4th Cir. 1996); United States v. Fisher, 58 F.3d 96, 99-100 (4th
Cir. 1995). Furthermore, the amendments to the Sentencing
Guidelines have no effect on the constitutionality or applicability
of the statutory mandatory minimum sentences for crack cocaine
offenses. See USSG § 5G1.1(b); Neal v. United States, 516 U.S.
284, 294 (1996).
- 5 -
the amendments to the Sentencing Guidelines, we affirm Jones’
conviction, but vacate his sentence and remand for resentencing.2
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
2
We recognize that Jones is subject to statutory mandatory
minimum sentences totaling 180 months’ imprisonment. See 21
U.S.C.A. § 841(b)(1)(A); 18 U.S.C. § 924(c)(1)(A)(I).
Nevertheless, because a sentence of 181 months was imposed upon
him, and Jones challenged the disparity in sentencing between crack
and powder cocaine at sentencing, we conclude he is entitled to
resentencing under Kimbrough.
- 6 -