                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-5058



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ERVINE MAYS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:07-cr-00131-PMD-1)


Submitted:   April 7, 2008                    Decided:   May 8, 2008


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


Affirmed by unpublished per curiam opinion.


Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant.      Alston Calhoun Badger, Jr.,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Ervine Mays, Jr., pled guilty, without a plea agreement,

to possession with intent to distribute five grams or more of

cocaine base (“crack”), a quantity of cocaine, and a quantity of

marijuana, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.

2007) (Count One), and using and carrying a firearm during and in

relation to, and possessing a firearm in furtherance of, a drug

trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)(A)(I)

(West 2000 & Supp. 2007) (Count Two). The district court sentenced

Mays to sixty months in prison on Count One and a consecutive sixty

months in prison on Count Two.    Mays timely appealed.

          Mays’ attorney has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), questioning whether the

district court complied with Rule 11 of the Federal Rules of

Criminal Procedure in accepting Mays’ guilty plea, asserting that

the 100:1 ratio for crack cocaine and powder cocaine sentences

under § 841 is unconstitutional, and questioning the reasonableness

of Mays’ sentence.   Counsel states, however, that she has found no
meritorious grounds for appeal.1     Finding no meritorious grounds

for appeal, we affirm.

          Although   counsel   questioned   the   district    court’s

compliance with Rule 11, she concluded that there were no errors in

the Rule 11 proceeding.   We note that the district court failed to

inform Mays that he could persist in his initial plea of not


     1
      Mays received notice of his right to         file   a   pro   se
supplemental brief, but he did not file one.

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guilty, as required by Fed. R. Crim. P. 11(b)(1)(B).        Because Mays

did not move in the district court to withdraw his guilty plea, any

error in the Rule 11 hearing is reviewed for plain error.          United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).

           To demonstrate plain error, Mays must establish that

error occurred, that it was plain, and that it affected his

substantial rights.     United States v. Hughes, 401 F.3d 540, 547-48

(4th Cir. 2005).      A defendant who alleges that there was Rule 11

error affecting his substantial rights bears the burden of showing

a reasonable probability that, but for the error, he would not have

entered the plea. United States v. Dominguez Benitez, 542 U.S. 74,
83 (2004).

           Mays was aware that he could persist in his plea of not

guilty because the very purpose of the plea hearing was to change

his plea from not guilty to guilty.         United States v. Knox, 287

F.3d 667, 670 (7th Cir. 2002).       The record provides no basis upon

which to conclude that Mays would not have pled guilty had the

district court advised him of his right to continue to plead not
guilty.

           Next, Mays takes issue with the 100:1 crack cocaine

versus powder cocaine sentencing disparity in § 841, arguing that

it   violates   his   equal   protection   rights.   We   note   that   the

Sentencing Commission has recently amended the federal sentencing

guidelines to reduce the disparity in the guidelines, see U.S.
Sentencing Guidelines Manual § 2D1.1 (c) (2007), but the statute

has not been amended.         Mays acknowledges that this court has


                                   - 3 -
rejected challenges to the constitutionality of § 841, see, e.g.,

United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995); United
States v. D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994), but he wishes

to preserve his objection to the disparity.      To the extent that

Mays seeks to have this court reconsider its holdings in these

cases, “a panel of this court cannot overrule, explicitly or

implicitly, the precedent set by a prior panel of this court.   Only

the Supreme Court or this court sitting en banc can do that.”2

Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th

Cir. 2002) (internal quotation marks and citations omitted).

             Finally, Mays argues that his sentence is unreasonable.

Appellate courts review sentences imposed by district courts for

reasonableness, applying an abuse of discretion standard.    Gall v.
United States, 128 S. Ct. 586, 597-98 (2007); United States v.

Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007).     When sentencing a

defendant, a district court must: (1) properly calculate the

guideline range; (2) determine whether a sentence within that range

serves the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2007); (3) implement mandatory statutory limitations; and (4)

explain its reasons for selecting a sentence.    Pauley, 511 F.3d at
473.       In the Fourth Circuit, “[a] sentence within the proper



       2
      The Supreme Court’s recent decision in Kimbrough v. United
States, 128 S. Ct. 558 (2007) (holding that district court has
discretion to find “that the crack/powder disparity yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s purpose,
even in a mine run case”), did not find § 841's penalty provisions
unconstitutional, nor did it overrule this court’s prior holdings
rejecting such challenges to the 100:1 ratio.

                                 - 4 -
Sentencing Guidelines range is presumptively reasonable.”                    United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v.
United   States,      127    S.   Ct.      2456,   2462-69    (2007)    (upholding

presumption of reasonableness for within-guidelines sentence).

This presumption can only be rebutted by showing that the sentence

is unreasonable when measured against the § 3553(a) factors.

United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006),

cert. denied, 127 S. Ct. 3044 (2007).

              Here,   the    district      court   correctly     calculated     the

guideline range, treated the guidelines as advisory, and considered

the § 3553(a) factors.               The court considered “the nature and

circumstances of the offense and the history and characteristics of

the defendant,” 18 U.S.C.A. § 3553(a)(1), and the need “to provide

just punishment for the offense,” id. at § 3553(a)(2)(A).                       The

court then imposed consecutive sixty—month prison terms, the bottom

of the guideline range and the statutory minimum.                We find that the

sentence is reasonable.

              In accordance with Anders, we have reviewed the record in
this   case    and    have   found    no    meritorious      issues    for   appeal.

Accordingly, we affirm Mays’ convictions and sentence.                  This court

requires that counsel inform Mays, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Mays 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 Mays.                        We

                                        - 5 -
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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