UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM KEITH NELSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00429-JAB-4)
Submitted: October 25, 2010 Decided: November 18, 2010
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth R. Cohen, SMITH, JAMES, ROWLETT & COHEN, L.L.P.,
Greensboro, North Carolina, for Appellant. John W. Stone, Jr.,
Acting United States Attorney, Angela H. Miller, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Keith Nelson appeals his conviction and 120-
month sentence following his guilty plea to distribution of 56.4
grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A) (2006).
Nelson’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
Nelson’s sentence to the statutory mandatory minimum term of
imprisonment was reasonable. Counsel requests that the court
reconsider and overrule its decision in United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005), to allow a district
court discretion to depart from the statutorily mandated minimum
sentence. In addition, counsel and Nelson filed supplemental
briefs challenging the indictment and Nelson’s conviction
because the Assistant United States Attorney who prosecuted the
case in the district court had previously had his law license
suspended. Counsel also requests remand for resentencing in
light of recent legislation addressing crack cocaine sentencing
disparities. Finding no reversible error, we affirm.
To the extent Nelson seeks to have this court
reconsider our prior holding in Robinson, the decision of a
prior panel is binding “unless it is overruled by a subsequent
en banc opinion of the court or a superseding contrary decision
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of the Supreme Court. United States v. Collins, 415 F.3d 304,
311 (4th Cir. 2005). Consequently, we conclude that the
district court possessed no discretion to sentence Nelson below
the statutory minimum sentence of 120 months’ imprisonment
mandated by 21 U.S.C. § 841(b)(1)(A) (2006), and that the
statutorily mandated minimum sentence is per se reasonable.
United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). We
reject Nelson’s request to remand for resentencing, as the Fair
Sentencing Act of 2010, which amended the penalty provisions of
21 U.S.C. § 841(b) by increasing the quantities of crack cocaine
required to trigger mandatory minimum sentences, does not apply
retroactively. See Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372; United States v. Gomes, ___ F.3d ___,
2010 WL 3810872 (11th Cir. Oct. 1, 2010); United States v.
Carradine, __ F.3d __, 2010 WL 3619799 (6th Cir. Sept. 20,
2010).
Finally, review of the record indicates that Nelson
has failed to establish a violation of his constitutional right
to due process of law or prejudice warranting reversal of the
district court’s judgment arising from the fact that the
Government’s attorney had had his license to practice law
suspended. Therefore, Nelson is not entitled to dismissal of
the indictment or relief from his conviction and sentence.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Nelson’s conviction and sentence. This
court requires that counsel inform Nelson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If he 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 Nelson. 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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