                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5114


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

SENTWAL SMITH,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:07-cr-00556-JFM-1)


Submitted:    May 8, 2009                     Decided:   June 9, 2009


Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Brendan A. Hurson,
Assistant Federal Public Defender, Baltimore, Maryland, for
Appellant.      Rod   J.   Rosenstein, United States Attorney,
Christopher   J.   Romano,   Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sentwal Smith pled guilty to possession with intent to

distribute fifty grams or more of cocaine base.                         Smith received

the   mandatory      minimum      120-month    sentence.          On    appeal,   Smith

challenges the constitutionality of the crack to powder cocaine

sentencing ratio and contends that he should have received a

sentence   below     the     statutory    minimum.         Finding      no   error,   we

affirm the sentence.

            We have repeatedly held that the 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) (collecting cases

and holding that § 841(b)(1)(A) has a rational basis).                            Smith

argues that, although he concedes that Congress may have had a

rational     basis     for     enacting    the    crack      to        powder   cocaine

sentencing    ratio,       that    reasoning     is   no    longer       rational     and

therefore violates equal protection.                  However, in addition to

the holding in Burgos, in United States v. Thomas, 900 F.2d 37

(4th Cir. 1990), this court considered whether § 841(b) has a

rational basis and decided that “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

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cocaine powder and because it is specifically targeted toward

youth.” Id. at 39-40.            While Smith maintains that data collected

since Thomas was decided has eroded the factual support for its

holding, he concedes that Kimbrough v. United States, 128 S. Ct.

558 (2007), does not call into question the disparity he is

challenging.

            Generally, appellate courts review sentences imposed

by district courts after United States v. Booker, 543 U.S. 220

(2005),    for    reasonableness,         applying     an   abuse     of    discretion

standard.     United States v. Gall, 128 S. Ct. 586, 597-98 (2007).

First, the appeals court examines the sentence for “significant

procedural       error,”    and    then     it   considers      the    “substantive

reasonableness      of     the    sentence.”     United      States        v.   Pauley,

511 F.3d 468, 473 (4th Cir. 2007) (citing Gall, 128 S. Ct. at

597).     Reviewing the substantive reasonableness of the sentence

entails taking into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.

Id.     We conclude that Smith has not identified any significant

procedural       error     and    that     the   sentence       is    substantively

reasonable.

              We therefore affirm the sentence.                 We dispense with

oral    argument    because       the    facts   and    legal    contentions        are




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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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