                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5036


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GRADY LEE RUSHING,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cr-00192-MR-1)


Submitted:   July 29, 2010                  Decided:     August 20, 2010


Before MOTZ and      SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, Charlotte, North Carolina, for Appellant. Adam
Christopher Morris, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Pursuant to a plea agreement, Grady Lee Rushing pled

guilty to possession with intent to distribute five grams or

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

(b)(1)(B) (2006).          The district court sentenced Rushing to the

mandatory minimum term of sixty months’ imprisonment.

             Rushing’s         attorney    has      filed      a    brief    pursuant    to

Anders v. California, 386 U.S. 738 (1967), stating that, in his

view,     there     are     no     meritorious         grounds        for   appeal,     but

suggesting that the district court’s reliance on the statutory

mandatory        minimum       renders     Rushing’s          sentence       procedurally

unreasonable.       Rushing has filed a pro se supplemental brief in

which he raises the same issue and challenges the adequacy of

the   district     court’s       explanation       for     his      sentence.     For   the

reasons that follow, we affirm the district court’s judgment.

             Post-Booker, 1        this        court     reviews       a    sentence    for

reasonableness,          applying     an       abuse     of      discretion      standard.

Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,

130     S. Ct.     290     (2009).         This        review       requires     appellate

consideration        of        both      the       procedural         and      substantive

reasonableness       of    a     sentence.         Gall,      552    U.S.   at   51.     In

      1
          United States v. Booker, 543 U.S. 220 (2005).



                                               2
determining procedural reasonableness, we consider whether the

district      court   properly       calculated              the     defendant’s          advisory

Guidelines       range,     considered      the         18    U.S.C.    §    3553(a)        (2006)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                           Gall, 552 U.S. at

51.   “Regardless of whether the district court imposes an above,

below,   or      within-Guidelines         sentence,            it    must       place     on    the

record   an      individualized      assessment               based    on    the     particular

facts of the case before it.”               United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).                                      If

we find “no significant procedural error,” we next assess the

substantive       reasonableness          of       the        sentence,          taking     “‘into

account the totality of the circumstances, including the extent

of any variance from the Guidelines range.’”                                United States v.

Morace, 594 F.3d 340, 346-47 (4th Cir. 2010) (quoting Gall, 552

U.S. at 51).

              Both counsel and Rushing advance that the sixty-month

sentence is procedurally unreasonable because it was based on a

purportedly      unconstitutional          statutory           mandatory         minimum.         We

disagree.        As   the    Supreme      Court         recognized          in    Kimbrough       v.

United   States,      552    U.S.    85,       108      (2007),       although       sentencing

courts     are    free,      post-Booker,            to      reject     the        100:1        crack

cocaine/powder        cocaine       ratio          in        terms     of    a      defendant’s

Guidelines       range,     they    are    nonetheless               “constrained          by    the

                                               3
mandatory       minimums      Congress        prescribed.”            Furthermore,         this

issue     is   foreclosed      by   Circuit          precedent    that    has       not   been

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

(4th Cir. 1997) (rejecting equal protection challenge to the

disparate       statutory      mandatory            minimums   applicable       to        crack

cocaine and powder cocaine offenses); United States v. Fisher,

58   F.3d      96,   99-100    (4th       Cir.      1995)    (rejecting       due    process

challenge to same).

               We also reject Rushing’s contention that the district

court failed to adequately explain the sentence it imposed.                                The

district court offered a thorough discussion of the § 3553(a)

sentencing      factors     that    informed          its   decision     to    impose      the

minimum     sentence      mandated       by    statute.        See    United    States       v.

Lynn, 592 F.3d 572, 576 (4th Cir. 2010)                          Accordingly, we hold

that Rushing’s sentence is procedurally reasonable. 2

               In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.                                      The

district court complied with the mandates of Federal Rule of

Criminal       Procedure      11    in     accepting        Rushing’s     guilty          plea.

Accordingly,         we   affirm    the       district      court’s    judgment.           This

      2
       We also afford Rushing’s within-Guidelines sentence a
presumption of substantive reasonableness. See United States v.
Wright, 594 F.3d 259, 267 (4th Cir. 2010); see also Rita v.
United States, 551 U.S. 338, 347 (2007) (upholding rebuttable
presumption of reasonableness for within-Guidelines sentence).



                                                4
court requires that counsel inform his client, in writing, of

his 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

presented in the materials before the court and argument would

not aid the decisional process.

                                                                        AFFIRMED




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