UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5114
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SENTWAL SMITH,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:07-cr-00556-JFM-1)
Submitted: May 8, 2009 Decided: June 9, 2009
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Brendan A. Hurson,
Assistant Federal Public Defender, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney,
Christopher J. Romano, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sentwal Smith pled guilty to possession with intent to
distribute fifty grams or more of cocaine base. Smith received
the mandatory minimum 120-month sentence. On appeal, Smith
challenges the constitutionality of the crack to powder cocaine
sentencing ratio and contends that he should have received a
sentence below the statutory minimum. Finding no error, we
affirm the sentence.
We have repeatedly held that the sentencing disparity
between cocaine powder and crack offenses does not violate
either equal protection or due process. See United States v.
Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (collecting cases
and holding that § 841(b)(1)(A) has a rational basis). Smith
argues that, although he concedes that Congress may have had a
rational basis for enacting the crack to powder cocaine
sentencing ratio, that reasoning is no longer rational and
therefore violates equal protection. However, in addition to
the holding in Burgos, in United States v. Thomas, 900 F.2d 37
(4th Cir. 1990), this court considered whether § 841(b) has a
rational basis and decided that “Congress could rationally have
concluded that distribution of cocaine base is a greater menace
to society than distribution of cocaine powder and warranted
greater penalties because it is less expensive and, therefore,
more accessible, because it is considered more addictive than
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cocaine powder and because it is specifically targeted toward
youth.” Id. at 39-40. While Smith maintains that data collected
since Thomas was decided has eroded the factual support for its
holding, he concedes that Kimbrough v. United States, 128 S. Ct.
558 (2007), does not call into question the disparity he is
challenging.
Generally, appellate courts review sentences imposed
by district courts after United States v. Booker, 543 U.S. 220
(2005), for reasonableness, applying an abuse of discretion
standard. United States v. Gall, 128 S. Ct. 586, 597-98 (2007).
First, the appeals court examines the sentence for “significant
procedural error,” and then it considers the “substantive
reasonableness of the sentence.” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (citing Gall, 128 S. Ct. at
597). Reviewing the substantive reasonableness of the sentence
entails taking into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.
Id. We conclude that Smith has not identified any significant
procedural error and that the sentence is substantively
reasonable.
We therefore affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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