UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4625
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAKEEM ABDUK JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-00876-RBH-1)
Submitted: July 12, 2010 Decided: July 22, 2010
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, Carrie A. Fisher, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hakeem Abduk Johnson pled guilty to conspiracy to
distribute and possess with intent to distribute cocaine and
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), (b)(1)(C), 846 (2006). He now appeals,
arguing that the application of the crack-to-powder cocaine
sentencing disparity violated his equal protection and due
process rights and that his 168-month sentence violates the
Eighth Amendment’s prohibition against cruel and unusual
punishment. Finding no reversible error, we affirm.
The constitutionality of a federal statute is a
question of law that is reviewed de novo. United States v.
Buculei, 262 F.3d 322, 327 (4th Cir. 2001). We repeatedly have
rejected claims that the sentencing disparity between powder
cocaine and crack offenses violates either equal protection or
due process. See United States v. Perkins, 108 F.3d 512, 518-19
& n.34 (4th Cir. 1997) (citing cases); United States v. Burgos,
94 F.3d 849, 876-77 (4th Cir. 1996) (en banc). To the extent
that Johnson seeks to have this court 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).
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Furthermore, the 2007 amendments to the sentencing
guidelines have no effect on the constitutionality or
applicability of the statutory mandatory minimum sentences for
crack offenses. Although Johnson refers to the Supreme Court’s
decisions in Spears v. United States, 129 S. Ct. 840 (2009), and
Kimbrough v. United States, 552 U.S. 85 (2007), to bolster his
equal protection argument, this reference is misplaced. In
Spears, the Supreme Court held that the district court may apply
a different crack-to-powder-cocaine ratio when considering the
§ 3553(a) factors, and in Kimbrough, the Court held that
district courts may consider the crack-to-powder-cocaine
sentencing ratio as a possible basis for variance from the
guidelines. These holdings are unrelated to the
constitutionality of the sentencing disparity in the statute.
In fact, the Supreme Court explicitly stated in Kimbrough that,
even after the 2007 amendments, “district courts are constrained
by the mandatory minimum[] [sentences] Congress
prescribed . . . .” Id. at 108; see also United States v.
McClellon, 578 F.3d 846, 861 (8th Cir. 2009) (rejecting equal
protection and due process challenge to § 841 and stating that
“while there is proposed legislation in Congress that may remedy
the problems in question, these actions remain mere proposals,
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and it is not the province of this court to anticipate and
implement what may or may not occur in Congress”).
Johnson also seeks to challenge his sentence on Eighth
Amendment grounds, arguing that the penalties for crack offenses
are “cruel and unusual” because they are disproportionately
harsh in comparison to the penalties for offenses involving
cocaine powder. The Eighth Amendment “contains a ‘narrow
proportionality principle’ that ‘applies to noncapital
sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003)
(quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)).
However, “[t]his [C]ourt has held that proportionality review is
not available for any sentence less than life imprisonment
without the possibility of parole.” United States v. Ming Hong,
242 F.3d 528, 532 (4th Cir. 2001). Therefore, the
proportionality of Johnson’s sentence is not reviewable on
appeal.
Accordingly, we affirm Johnson’s within-Guidelines
sentence. See United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007) (holding that sentence within a properly calculated
Guidelines range is reasonable). We dispense with oral argument
because the facts and legal are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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