                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5071


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GEBRIAN RAYSHAWN GILLESPIE, a/k/a Gebrian Rayshawn Millspin,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.        William L.
Osteen, Jr., District Judge. (1:08-cr-00023-WO-1)


Submitted:    June 10, 2009                 Decided:   July 2, 2009


Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, Thomas N.
Cochran, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, L. Patrick Auld, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Gebrian Rayshawn Gillespie appeals from his conviction

on a guilty plea and sentence imposed for distribution of crack

cocaine,    in    violation       of   21   U.S.C.         §§ 841(a)(1),     (b)(1)(A)

(2006).    His sole issue on appeal is that the crack to powder

cocaine ratio is unconstitutional, a claim he raises for the

first time on appeal. *

            We find Gillespie’s challenge to the constitutionality

of § 841 to be without merit.                    As Gillespie acknowledges on

appeal,    this    court    has    repeatedly        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 (4th Cir. 1997); United

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

States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995).                           To the

extent Gillespie seeks to have us 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).

            Nor    do      the    2007      amendments        to    the     Sentencing

Guidelines       have   any       effect        on   the     constitutionality      or

     *
       We review Gillespie’s claim for plain error because he
failed to raise it in the district court. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725 (1993).



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applicability of the statutory mandatory minimum sentences for

crack offenses.          Gillespie’s attempts to bolster his argument

with the Supreme Court’s decision in Kimbrough v. United States,

128 S. Ct. 558, 575 (2007), is misplaced because its holding

that district courts may consider the crack/cocaine sentencing

ratio as a possible basis for variance from the Guidelines is

unrelated to the constitutionality of the sentencing disparity,

and     the   Supreme    Court    in    Kimbrough      specifically       held   that

“sentencing      courts     remain      bound     by   the    mandatory      minimum

sentences prescribed by statute.”               Id. at 573.

              Accordingly,       we    affirm    Gillespie’s       conviction    and

sentence.       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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