                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5073


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

BOBBY MICHAEL GILYARD, a/k/a Big Mike,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.     Henry M. Herlong, Jr., Senior
District Judge. (8:09-cr-00274-HMH-1)


Submitted:   August 19, 2010                 Decided:   August 26, 2010


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Everett P. Godfrey, Jr., GODFREY LAW FIRM LLC, Greenville, South
Carolina, for Appellant.    Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Bobby Gilyard pled guilty pursuant to a written plea

agreement       to        possession          with          intent      to     distribute           and

distribution         of    fifty      grams     or      more      of    cocaine       base    and     a

quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A),       (b)(1)(D)            (2006).               He    was     sentenced          to     the

statutorily-mandated                  minimum          sentence           of        240      months’

imprisonment.         On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting, in his

opinion, there are no meritorious grounds for appeal but raising

the   issue     of    whether         the   sentencing           scheme       for    cocaine       base

offenses      under       21    U.S.C.      § 841      violates         the    Due   Process        and

Equal    Protection            clauses.         Finding          no    reversible         error,     we

affirm.

              Gilyard          argues    that      the       sentencing        scheme      under     21

U.S.C. § 841 as it relates to cocaine base is unconstitutional

because it is not proportional to sentences for powder cocaine

and therefore it violates his rights to due process and equal

protection.          As counsel concedes, this issue is foreclosed by

Circuit    precedent           that     has   not       been      overruled.          See     United

States     v.    Perkins,         108       F.3d       512,      518-19       (4th    Cir.        1997)

(rejecting equal protection challenge to the disparate statutory

mandatory       minimums         applicable            to     crack     cocaine       and     powder

cocaine offenses); United States v. Fisher, 58 F.3d 96, 99-100

                                                   2
(4th Cir. 1995) (rejecting due process challenge to same).                            See

also   Kimbrough        v.   United      States,    552   U.S.     85,    108    (2007)

(recognizing that, although sentencing courts are free to reject

the 100:1 crack/powder ratio used to calculate a defendant’s

Guidelines       range,      they    are   nonetheless     “constrained         by    the

mandatory minimums Congress prescribed.”).

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We further reject Gilyard’s arguments in his pro se

supplemental brief.            We therefore affirm the district court’s

judgment.     This court requires that counsel inform Gilyard, in

writing,    of    his     right     to   petition   the   Supreme    Court       of   the

United States for further review.                   If Gilyard 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 Gilyard.                          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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