Opinion
No. 19-4295
02-13-2020
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRICK LAMORRIS MCKENZIE, Defendant - Appellant.
G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00055-D-1) Before MOTZ, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Pursuant to a written plea agreement, Darrick Lamorris McKenzie pled guilty to two counts of carjacking, 18 U.S.C. § 2119(1) (2018), brandishing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii) (2018), and discharging a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii) (2018). The district court sentenced McKenzie to 379 months of imprisonment, of which 17 years was based on McKenzie's consecutive sentences for his § 924(c) convictions. On appeal, counsel for McKenzie filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal but questioning whether his 17-year mandatory minimum sentence for his § 924(c) convictions violates equal protection, due process, and the Eighth Amendment. McKenzie has filed a pro se supplemental brief. The government elected not to file a brief and does not seek to enforce the appeal waiver in McKenzie's plea agreement.
Because the government fails to assert the appeal waiver as a bar to this appeal, we may consider the issue raised by counsel and conduct an independent review of the record pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
Counsel's challenge to McKenzie's § 924(c) sentences is foreclosed. See United States v. Khan, 461 F.3d 477, 495 (4th Cir. 2006), as amended (Sept. 7, 2006) (rejecting argument that "lengthy sentences imposed by the 'count-stacking' provisions of § 924(c) are so long as to constitute a violation of due process, equal protection, and the Eighth Amendment prohibition against Cruel and Unusual punishment"). Further, upon review, we conclude that the issues raised by McKenzie in his pro se supplemental brief are without merit. In accordance with Anders, we have reviewed the record in this case and found no meritorious issues for appeal. We therefore affirm the district court's judgment.
This court requires that counsel inform McKenzie, in writing, of the right to petition the Supreme Court of the United States for further review. If McKenzie 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 McKenzie. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED