                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5159


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ARTHUR LEE BUTLER, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:09-cr-00282-GRA-2)


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


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Arthur Lee Butler, Jr., pled guilty to conspiracy to

possess with intent to distribute and to distribute fifty grams

or   more     of     crack     cocaine,       in    violation           of     21    U.S.C.

§§ 841(a)(1), (b)(1)(A), 846 (2006).                     He was sentenced to the

statutory mandatory minimum of 120 months in prison.                                 He now

appeals,     arguing    that    the    application         of    the    crack-to-powder

cocaine     sentencing       disparity    in       his     statute       of    conviction

violated his right to equal protection. Finding no reversible

error, we affirm.

             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 a defendant’s right to equal

protection.        See United States v. Perkins, 108 F.3d 512, 518-19

& n.34 (4th Cir. 1997); United States v. Fisher, 58 F.3d 96,

99-100 (4th Cir. 1995).          To the extent that Butler 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).

             Furthermore,      although       Butler      refers       to     the   Supreme

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

(2007), to bolster his equal protection argument, this reference

                                          2
is misplaced.   In Kimbrough, the Court held that district courts

may consider the crack-to-powder-cocaine sentencing ratio as a

possible basis for variance from the Guidelines.      However, this

holding is unrelated to the constitutionality of the sentencing

disparity in the statute.   In fact, the Supreme Court explicitly

stated in Kimbrough that “district courts are constrained by the

mandatory minimum[] [sentences] Congress prescribed . . . .”

Id. at 108.

          Accordingly, we affirm Butler’s sentence.     We dispense

with oral argument because the facts and legal are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                           AFFIRMED




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