UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5159
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTHUR LEE BUTLER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:09-cr-00282-GRA-2)
Submitted: August 19, 2010 Decided: August 26, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arthur Lee Butler, Jr., pled guilty to conspiracy to
possess with intent to distribute and to distribute fifty grams
or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846 (2006). He was sentenced to the
statutory mandatory minimum of 120 months in prison. He now
appeals, arguing that the application of the crack-to-powder
cocaine sentencing disparity in his statute of conviction
violated his right to equal protection. 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 a defendant’s right to equal
protection. See United States v. Perkins, 108 F.3d 512, 518-19
& n.34 (4th Cir. 1997); United States v. Fisher, 58 F.3d 96,
99-100 (4th Cir. 1995). To the extent that Butler 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).
Furthermore, although Butler refers to the Supreme
Court’s decision in Kimbrough v. United States, 552 U.S. 85
(2007), to bolster his equal protection argument, this reference
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is misplaced. 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. However, this
holding is unrelated to the constitutionality of the sentencing
disparity in the statute. In fact, the Supreme Court explicitly
stated in Kimbrough that “district courts are constrained by the
mandatory minimum[] [sentences] Congress prescribed . . . .”
Id. at 108.
Accordingly, we affirm Butler’s sentence. We dispense
with oral argument because the facts and legal are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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