UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4642

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DANIEA DAVON KELLY,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. Patrick Michael Duffy, District

Judge. (2:06-cr-01287-PMD)

Submitted: March 20, 2008 Decided: April 11, 2008

Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Mary Gordon Baker, Assistant Federal Public Defender, Charleston,

South Carolina, for Appellant. Reginald I. Lloyd, United States

Attorney, Columbia, South Carolina; 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Unpublished opinions are not binding precedent in this circuit.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:

Daniea Kelly pled guilty pursuant to a written plea

agreement to one count of possession with intent to distribute five

grams or more of cocaine base (“Count One”), in violation of 21

U.S.C. § 841(a)(1), (b)(1)(c) (2000), and one count of use of a

firearm in furtherance of a drug trafficking crime (“Count Four”),

in violation of 18 U.S.C. § 924(c)(1)(A) (2000). The court

sentenced Kelly to a total of 147 months in prison, and Kelly

timely appealed. Kelly’s attorney filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), certifying that there

are no meritorious grounds for appeal, but questioning whether the

crack cocaine to powder cocaine disparity applied by the district

court in sentencing was unconstitutional. The Government did not

file a reply brief. Kelly was advised of his right to file a pro

se supplemental brief, but has not done so. 

In accordance with our obligation under Anders, we have

reviewed Kelly’s conviction and find no reversible error. His

guilty plea was accepted after a properly-concluded Fed. R. Crim.

P. 11 hearing, and he does not contend that his plea was

involuntary. Accordingly, we affirm his conviction. 

As to his sentence, Kelly argues that the crack cocaine

to powder cocaine disparity employed in sentencing is

unconstitutional. Kelly was sentenced to 87 months in prison on

Count One; the statutory range for the count is five years to forty
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years. 21 U.S.C. § 841(b)(1)(B). While the appeal was pending,

the Supreme Court issued Kimbrough v. United States, 128 S. Ct. 558

(2007), holding 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. In Kimbrough the Court remanded to permit the

district court to consider the appropriateness of applying the 100-

to-1 ratio of crack cocaine to powder cocaine in sentencing.

Accordingly, we vacate Kelly’s sentence and remand for the purpose

of allowing the court to resentence Kelly in accordance with

Kimbrough and U.S. Sentencing Guidelines Manual § 2D1.1 (2007)

(Amendment 706). 

This court requires that counsel inform Kelly, in

writing, of the right to petition the Supreme Court of the United

States for further review. If Kelly 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 Kelly.
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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 IN PART,

VACATED IN PART,

AND REMANDED