UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEANGELO SYLVESTER RIVERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:07-cr-00304-DCN-1)
Submitted: December 21, 2010 Decided: January 20, 2011
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Robert F. Daley, Jr., Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deangelo Sylvester Rivers pled guilty, pursuant to a
plea agreement, to possession of a firearm and ammunition after
being convicted of a felony, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2006). Finding that Rivers had
three prior convictions qualifying him as an armed career
criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e), the court sentenced him at the lowest point of the
guidelines range to 188 months of imprisonment.
On appeal, we found the record unclear as to whether
Rivers’ prior conviction for failure to stop for a blue light
qualified as a predicate conviction under the ACCA in light of
our decision in United States v. Roseboro, 551 F.3d 226 (4th
Cir. 2009). Consequently, we vacated the judgment and remanded
for resentencing. United States v. Rivers, 310 F. App’x 618
(4th Cir. 2009) (No. 08-4093). The district court again
sentenced Rivers to 188 months of imprisonment.
On appeal of the amended judgment, we determined that
under Chambers v. United States, 129 S. Ct. 687 (2009), a
violation of South Carolina’s blue light statute does not
qualify as a violent felony under the ACCA. United States v.
Rivers, 595 F.3d 558, 565 (4th Cir. 2010). Thus, we again
vacated the judgment and remanded for resentencing. Without the
conviction for failure to stop for a blue light, Rivers no
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longer qualified for enhanced penalties under the ACCA. The
district court overruled Rivers’ objection to the disparities
between sentences for crack and powder cocaine and sentenced
Rivers to eighty-four months of imprisonment. Rivers timely
appealed.
The sole issue presented on this appeal is whether
U.S. Sentencing Guidelines Manual (USSG) § 2D1.1 (2007) violates
the Equal Protection Clause by creating an unconstitutional
sentencing disparity between sentences for crack cocaine and
powder cocaine offenses. 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 equal
protection. 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 Rivers 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).
Rivers acknowledges that this court has rejected the
arguments he asserts, but contends that these precedents should
be reconsidered in light of the Supreme Court’s decision in
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Kimbrough v. United States, 552 U.S. 85 (2007). In Kimbrough,
however, the Supreme Court allowed, but did not mandate a
district court’s consideration of sentencing disparities as a
basis for imposing a lesser sentence in a crack cocaine case.
Kimbrough, 552 U.S. at 109-11. See Spears v. United States, 129
S. Ct. 840 (2009). Accordingly, Kimbrough does not advance
Rivers’s argument.
We have reviewed the record and find no reversible
error. Accordingly, we affirm. 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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