                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4710


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

BARRY TUNSTALLE,

                  Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:07-cr-00014-TEJ-1)


Submitted:    April 30, 2009                 Decided:   December 15, 2009


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.    Charles T.
Miller, United States Attorney, Miller A. Bushong, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Barry Tunstalle pled guilty in 2007 to distributing

cocaine     base    (crack)   and    was    sentenced    within     the     guideline

range to a term of fifty-five months imprisonment.                        On appeal,

we vacated the sentence and remanded for resentencing in light

of Kimbrough v. United States, 552 U.S. 85 (2007).                        See United

States v. Tunstalle, 266 F. App’x 291 (4th Cir. 2008).                               On

remand, the district court applied the revised guidelines for

crack offenses and recalculated Tunstalle’s advisory guideline

range as 37-46 months.              The court then imposed a thirty-two-

month variance sentence pursuant to 18 U.S.C. § 3553(a) (2006),

in   view   of     Tunstalle’s   relative       youth    and    relative     lack    of

criminal history.        In this appeal, Tunstalle contends that the

sentence violates his Fifth Amendment substantive due process

rights      because    the    statutory         sentencing      scheme      and     the

sentencing guidelines for crack offenses, which provide harsher

sentences than for powder cocaine offenses, are not rationally

related to a legitimate government interest.                   We affirm.

             Tunstalle    argues     that      our   prior   decisions      upholding

the statutory sentencing scheme for crack offenses should not

control because they addressed equal protection claims, while he

is “seeking to vindicate his individual due process right not to

be subject to an arbitrary and irrational sentencing scheme.”

However, we have rejected claims that the sentencing disparity

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between    powder       cocaine    and     crack        offenses       lacks   a   rational

basis.     See United States v. Burgos, 94 F.3d 849, 876-77 (4th

Cir. 1996) (holding that § 841(b) has a rational basis); United

States v. Thomas, 900 F.2d 37 (4th Cir. 1990) (same).                                    While

Tunstalle maintains that data collected since Thomas was decided

has eroded the factual support for its holding, he concedes that

Kimbrough      does     not    call    into       question       the   disparity      he    is

challenging.        Moreover, since Kimbrough was decided, the Second

Circuit    has      affirmed     its   own        prior    decisions      upholding        the

constitutionality        of     § 841(b)      in    a     case    where    the     appellant

claimed that “§ 841(b) violates the equal protection component

of the Fifth Amendment’s Due Process Clause because there is no

rational basis for the disparity between sentences for powder

and crack cocaine.”             United States v. Samas, 561 F.3d 108, 109

(2d Cir. 2009).

               We   therefore      affirm         the     sentence      imposed     by     the

district    court.        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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