IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30414
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIMIA JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CR-209-2-T
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June 15, 1999
Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
Kimia Johnson appeals his guilty plea convictions for
conspiracy to possess with intent to distribute cocaine base and
possession with intent to distribute cocaine base. Johnson
argues for the first time on appeal that the Sentencing
Guidelines, which establish heavier penalties for cocaine base
offenses than for powder cocaine offenses, violate the Equal
Protection Clause.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-30414
-2-
Johnson misstates the applicable standard of review (review
is for plain error), fails to address the appeal waiver in his
appellate brief, and, regardless of the appeal waiver, ignores
this court’s well-settled case law holding that the sentencing
disparity does not violate the Equal Protection Clause. See,
e.g., United States v. Steen, 55 F.3d 1022, 1029 n.15 (5th Cir.
1995) (noting that this court and every other circuit that has
addressed this argument has rejected it). It is also well-
settled in this circuit that one panel may not overrule another
prior panel absent intervening legislation, a decision by our en
banc court, or a decision of the Supreme Court. Barber v.
Johnson, 145 F.3d 234, 237 (5th Cir. 1997), cert. denied, 119
S. Ct. 518 (1998). The appeal is frivolous and is thus
DISMISSED. See 5th Cir. R. 42.2. Counsel is warned that
pursuing frivolous appeals invites sanctions. See United States
v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
APPEAL DISMISSED; SANCTION WARNING ISSUED.