UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4680

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VINCENT LEONARD JONES, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. David C. Norton, District Judge.

(2:06-cr-00977-DCN)

Submitted: April 17, 2008 Decided: May 13, 2008

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

Mary Gordon Baker, Assistant Federal Public Defender, Charleston,

South Carolina, for Appellant. John Charles Duane, Assistant

United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Vincent Leonard Jones, Jr., appeals from his convictions

and 181-month sentence after pleading guilty to possession with

intent to distribute 50 grams or more of cocaine base and a

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

(b)(1)(A), (b)(1)(C) (West 1999 & Supp. 2007), and possession of a

firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A)(I) (2000). Jones’ counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), in which she

asserts that there are no meritorious issues for appeal, but asks

this court to review whether the district court complied with Fed.

R. Crim. P. 11 in accepting Jones’ guilty plea, whether the

Sentencing Guidelines and statutory mandatory minimum sentences for

crack cocaine offenses are unconstitutional, and whether Jones’

sentence was reasonable. Jones was given an opportunity to file a

pro se supplemental brief, but has not done so. For the reasons

stated below, we affirm Jones’ convictions, but vacate his sentence

and remand for resentencing.

Under Fed. R. Crim. P. 11(b)(1), the district court must

address the defendant in open court and inform him of the

following: the nature of the charge; any mandatory minimum sentence

and the maximum possible sentence; the applicability of the

Sentencing Guidelines; the court’s obligation to impose a special

assessment; the defendant’s right to an attorney; his right to
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plead not guilty and be tried by a jury with the assistance of

counsel; his right to confront and cross-examine witnesses; his

right against self-incrimination; and his right to testify, present

evidence, and compel the attendance of witnesses. The defendant

also must be told that a guilty plea waives any further trial and

that his answers at the proceeding may be used against him in a

prosecution for perjury. Under Rule 11(b)(2), the court must

address the defendant to determine that the plea is voluntary. The

court must require disclosure of any plea agreement under Rule

11(c)(2) and determine a factual basis for the plea under Rule

11(b)(3). Because Jones did not move in the district court to

withdraw his guilty plea, his challenges to the Rule 11 hearing are

reviewed for plain error. See United States v. Martinez, 277 F.3d

517, 524-25 (4th Cir. 2002).

During the plea hearing, the district court properly

informed Jones of the rights he was forfeiting as a result of his

plea and the nature of the charges and penalties he faced, found

that Jones was competent and entering his plea voluntarily, and

determined there was a sufficient factual basis for the plea.

Therefore, the record establishes Jones knowingly and voluntarily

entered into his guilty plea with a full understanding of the

consequences and there was no error in the district court’s

acceptance of his plea.
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As for Jones’ sentence, we review a district court’s

imposition of a sentence for abuse of discretion. Gall v. United

States, 128 S. Ct. 586, 597 (2007); see also United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court must first

ensure that the district court committed no procedural error, such

as “failing to calculate (or improperly calculating) the Guideline

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence - including an explanation for any deviation from the

Guideline range.” Gall, 128 S. Ct. at 597. If there are no

procedural errors, we then consider the substantive reasonableness

of the sentence. Id. “Substantive reasonableness review entails

taking into account the ‘totality of the circumstances, including

the extent of any variance from the Guidelines range.’” Pauley,

511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597).

After Jones was sentenced, the Supreme Court decided, in

Kimbrough v. United States, 128 S. Ct. 558 (2007), that “it would

not be an abuse of discretion for a district court to conclude when

sentencing a particular defendant that the crack/powder disparity

yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s

purposes, even in a mine-run case.” Id. at 575. Kimbrough thus

abrogated this court’s decision in United States v. Eura, 440 F.3d

625, 634 (4th Cir. 2006) (holding that 100:1 ratio cannot be the
1Jones also contends that the relevant Sentencing Guidelines

and statutory mandatory minimum sentences for crack cocaine

offenses are unconstitutional under the Equal Protection Clause.

In light of the amendments to USSG § 2D1.1, Jones’ challenge to the

constitutionality of the Sentencing Guidelines is moot. As for

Jones’ constitutional challenge to the statutory mandatory minimum

sentences for crack cocaine offenses, this court has consistently

rejected such claims. 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). Furthermore, the amendments to the Sentencing

Guidelines have no effect on the constitutionality or applicability

of the statutory mandatory minimum sentences for crack cocaine

offenses. See USSG § 5G1.1(b); Neal v. United States, 516 U.S.

284, 294 (1996).

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basis of a variance), vacated, 128 S. Ct. 853 (2008). Furthermore,

on November 1, 2007, the United States Sentencing Commission

lowered the base offense level for drug offenses involving crack

cocaine. See U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1

(2007); USSG App. C, Supp. Amend. 706. This amendment has been

made retroactive, effective March 3, 2008, and would now be

applicable to Jones’ sentence. See USSG § 1B1.10(c) (Mar. 3,

2008).

At sentencing, Jones challenged the constitutionality of

the crack/powder cocaine ratio and requested a variance sentence;1

however, the district court did not have the benefit of the Supreme

Court’s decision in Kimbrough or the recent amendments to the crack

cocaine guidelines. Accordingly, to accord the district court an

opportunity to reconsider Jones’ sentence in light of Kimbrough and
2We recognize that Jones is subject to statutory mandatory

minimum sentences totaling 180 months’ imprisonment. See 21

U.S.C.A. § 841(b)(1)(A); 18 U.S.C. § 924(c)(1)(A)(I).

Nevertheless, because a sentence of 181 months was imposed upon

him, and Jones challenged the disparity in sentencing between crack

and powder cocaine at sentencing, we conclude he is entitled to

resentencing under Kimbrough.

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the amendments to the Sentencing Guidelines, we affirm Jones’

conviction, but vacate his sentence and remand for resentencing.2

AFFIRMED IN PART;

VACATED AND REMANDED IN PART