UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4635
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ANGELO ROSEMOND,
Defendant - Appellant.
No. 09-4782
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENNY JOE ROSEMOND,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:08-cr-00921-GRA-1; 6:08-cr-00921-GRA-2)
Submitted: April 13, 2010 Decided: May 21, 2010
Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South
Carolina; Lora E. Collins, FEDERAL PUBLIC DEFENDERS OFFICE,
Greenville, South Carolina, for Appellants. W. Walter Wilkins,
United States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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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
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Kimbrough v. United States, 552 U.S. 85 (2007), is incorrect.
Id. at 107 (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
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