UNITED STATES COURT OF APPEALS
Filed 4/18/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 95-3303
v. (D.C. No. 94-CR-40058)
(Dist. Kansas)
RAYMOND B. WALKER,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered
submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions 10th Cir. R. 36.3.
Raymond B. Walker pled guilty to one count of possession with intent to distribute
approximately 9.8 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Prior to
sentencing, Mr. Walker argued to the district court that section 841(b)(1)(B) is
unconstitutional to the extent that it requires a mandatory minimum sentence of five years
for those convicted of possessing five or more grams of cocaine base. The district court
rejected this argument and sentenced Mr. Walker to sixty months in prison. Mr. Walker
renews this argument on appeal. We affirm.
We review the constitutionality of a statute de novo. United States v. Bolton, 68
F.3d 396, 398 (10th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996). Mr. Walker contends
that the penalty provision under which he was sentenced violates equal protection and due
process because it punishes the possession of cocaine base much more severely than the
possession of cocaine powder, thereby having an unduly and highly disproportionate
impact on racial minorities. Mr. Walker recognizes that we have decided these issues
adversely to his position. See, e.g., United States v. Easter, 981 F.2d 1549, 1558-59 (10th
Cir. 1992)(disparity does not violate equal protection), cert. denied, 508 U.S. 953 (1993);
United States v. Turner, 928 F.2d 956, 959-60 (10th Cir.)(disparity does not violate due
process), cert. denied, 502 U.S. 881 (1991). However, he urges that we reconsider our
prior rulings in light of the Sentencing Commission’s Special Report to the Congress:
Cocaine and Federal Sentencing Policy, which recommends eliminating the disparity in
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treatment between cocaine base and cocaine powder.1
Mr. Walker has presented nothing to undermine our prior decisions holding that
the penalty provision does not violate the Constitution. While the report recognizes the
disproportionate racial impact resulting from the disparity and recommends that it be
eliminated, that disproportionate impact has already been considered in the opinions
upholding the statute’s constitutionality. The fact that the Commission believes it did not
adequately consider the disproportionality in formulating the guideline corresponding to
section 841(b)(1)(B) likewise does not inform the legal question of whether the statute
itself is unconstitutional.2 Accordingly, we see no ground for revisiting our prior
conclusion that the statute in its present form does not offend the Constitution.
AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
1
Mr. Walker’s motion for initial en banc consideration of this issue has been
denied in a separate order.
2
We note that Congress has rejected the Commission’s recommendation that
cocaine powder and cocaine base be treated exactly the same for sentencing purposes.
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