                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4063


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BOBBY LAVERNE KERSEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00371-JAB-1)


Submitted:   June 11, 2009                    Decided:    July 15, 2009


Before TRAXLER,   Chief   Judge,   and   MICHAEL   and   SHEDD,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Winston-Salem, North Carolina, for Appellant.      Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Bobby Laverne Kersey pled guilty, pursuant to a plea

agreement, to distribution of crack cocaine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A) (2006).               He was sentenced to 120

months’    imprisonment.            Kersey’s   attorney   has    filed      a    brief

pursuant     to    Anders      v.    California,    386   U.S.        738   (1967),

certifying    there      are   no     meritorious   issues      for    appeal      but

arguing that the 100-to-1 disparity in sentencing between crack

and powder cocaine violates the equal protection clause.                        Kersey

was advised of the opportunity to file a pro se supplemental

brief and has not done so.            We affirm.

            Because this equal protection challenge was not raised

during sentencing, our review is for plain error.                     See Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993).    Under plain error review,

    [A]n appellate court may correct an error not brought
    to the attention of the trial court if (1) there is an
    error (2) that is plain and (3) that affects
    substantial rights.   If all three of these conditions
    are met, an appellate court may then exercise its
    discretion to notice a forfeited error, but only if
    (4)   the  error   seriously   affects  the  fairness,
    integrity,   or    public    reputation  of   judicial
    proceedings.

United    States    v.   Carr,      303   F.3d   539,   543   (4th     Cir.      2002)

(internal quotation marks, citations, and alterations omitted).

            Here, it is clear Kersey’s sentence did not violate

his equal protection rights.              We have repeatedly held that the

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sentencing disparity between cocaine powder and crack offenses

does not violate either equal protection or due process.                   See

United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en

banc) (collecting cases and holding that § 841(b)(1)(A) has a

rational basis).     In Burgos, we again outlined a rational basis

for the disparity between crack and powder cocaine:

     Congress   could    rationally  have    concluded that
     distribution of cocaine base is a greater menace to
     society than distribution of cocaine powder and
     warranted   greater   penalties  because   it  is less
     expensive and, therefore, more accessible, because it
     is considered more addictive than cocaine powder and
     because it is specifically targeted toward youth.

Id. at 877 (quoting United States v. Thomas, 900 F.2d 37, 39-40

(4th Cir. 1990)).         Accordingly, Kersey’s equal protection claim

is without merit.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm the judgment of the district court.

This court requires that counsel inform his client, in writing,

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

for further review.         If the client 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 the client.            We dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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