                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4715


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRIAN JEROME JORDAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:07-cr-00258-TDS-2)


Submitted:   July 13, 2010                 Decided:   August 18, 2010


Before WILKINSON, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Carlyle Sherrill, III, SHERRILL & CAMERON, Salisbury, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Brian Jerome Jordan pled guilty, pursuant to a plea

agreement, to distribution of 57.66 grams of crack cocaine and

aiding    and   abetting,     in     violation   of    21   U.S.C.     § 841(a)(1),

(b)(1)(A) (2006) and 18 U.S.C. § 2 (2006).                   Prior to the plea

hearing, the Government filed two notices of prior felony drug

convictions pursuant to 21 U.S.C. § 851 (2006), but withdrew one

of the notices prior to sentencing in accordance with the plea

agreement.      The district court sentenced Jordan to the statutory

minimum of 240 months of imprisonment, ten years of supervised

release, and a $100 special assessment.                Jordan timely appealed.

              On appeal, counsel 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      the

district court erred in sentencing Jordan to a longer term of

imprisonment than he would have received for an equal quantity

of   powder     cocaine,      because     application       of     the    statutory

mandatory minimum violated Jordan’s due process rights.                       In his

pro se supplemental brief, Jordan argues that the district court

erred    in   using   his    1993    juvenile    conviction      to   increase      his

statutory sentencing range, and that his plea was involuntary

because the court failed to explain how this conviction would

increase his sentence.            He also asserts that the court erred in

using six state misdemeanor convictions to increase his criminal

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history    score,       and    that      the   court’s          disregard         of    the     gross

disparity    between      crack          and   powder         cocaine       sentences         was   an

abuse of discretion.           The Government declined to file a brief.

            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 Jordan seeks to have this court reconsider these decisions,

a panel of this court cannot overrule the decision of a prior

panel.     United States v. Collins, 415 F.3d 304, 311 (4th Cir.

2005).

            Counsel acknowledges that this court has rejected the

due   process     argument          he     asserts,           but    contends          that    these

precedents    should          be   reconsidered           in        light    of    the        Supreme

Court’s    decision      in     Kimbrough       v.       United       States,      552    U.S.       85

(2007).      In   Kimbrough,             however,        the    Supreme       Court       did       not

analyze     the   statutory           minimum       sentences          for     crack          cocaine

offenses, but rather held that a district court may consider the

crack-powder disparity in the Sentencing Guidelines as a basis

for   imposing      a    lesser          sentence        in     a    crack     cocaine          case.

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Kimbrough, 552 U.S. at 109-11.               The Court also stated that “as

to   crack     cocaine       sentences       in        particular,          we   note    a

congressional control on disparities:                  possible variations among

district     courts    are    constrained         by     the    mandatory        minimums

Congress     prescribed      in   the   1986      Act.”        Id.    at    108.     “[A]

district court has no discretion to impose a sentence outside of

the statutory range established by Congress for the offense of

conviction,” unless the Government moves for a departure based

on the defendant’s substantial assistance.                           United States v.

Robinson, 404 F.3d 850, 862 (4th Cir. 2005).                      In this case, the

Government did not move for a departure, and thus the statutory

minimum applied.          Our review of the record leads us to conclude

that the district court properly imposed the statutory minimum

twenty-year sentence, which is reasonable.                     See United States v.

Farrior,     535   F.3d    210,   224   (4th      Cir.    2008)       (“A    statutorily

required sentence . . . is per se reasonable.”).

             In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We have considered the arguments asserted in Jordan’s pro se

supplemental       brief   and    conclude     they      do    not    entitle      him   to

relief.    We therefore affirm Jordan’s conviction and sentence.

This court requires that counsel inform Jordan, in writing, of

the right to petition the Supreme Court of the United States for

further review.        If Jordan requests that a petition be filed,

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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 Jordan.

            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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