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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4348
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES BENJAMIN,
Defendant - Appellant.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
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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.
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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
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