UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30131
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ERIC LAMPKIN,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(94 CR 50058 ALL)
( August 25, 1995 )
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Background
Eric Lampkin was convicted following a guilty plea of
conspiracy to distribute and possession with intent to distribute
cocaine base (crack) and cocaine hydrochloride. He was sentenced
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
to a 180-month term of imprisonment, a five-year period of
supervised release, and a $50 special assessment. In the district
court, Lampkin filed objections to the PSR, arguing that "cocaine
base is a term synonymous with cocaine and that ... as a result ...
the penalty provisions of [21 U.S.C. § 841] set out a
scientifically meaningless distinction between cocaine and cocaine
base and the heightened penalty provisions for cocaine base which
unfairly [a]ffect racial minorities". Lampkin did not challenge
the probation officer's drug quantity calculations; rather, he
argued that this court incorrectly decided United States v.
Galloway, 951 F.2d 64, 66 (5th Cir. 1992).
Opinion
Lampkin argues that the district court erred in refusing to
invoke the rule of lenity when applying the provisions of 21 U.S.C.
§ 841 for sentencing purposes; he argues that he should have been
sentenced according to the sentencing provisions for cocaine powder
rather than those for cocaine base. He argues that scientists find
no chemical difference between crack and cocaine hydrochloride
powder and that the United States Sentencing Commission, in a
recent report, concurred with that finding. Lampkin argues that
because "[c]ocaine base is synonymous with cocaine ... the penalty
provisions of 21 U.S.C. [§] 841 set out a scientifically
meaningless distinction between cocaine and cocaine base". Lampkin
notes that in its report, the Sentencing Commission concluded that
it could not support the current penalty scheme because any
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differentiating factors between crack and cocaine powder do not
approach the level of the 100 to 1 sentencing ratio.
This Court has held that the disparate sentencing provisions
for crack cocaine and cocaine powder in the sentencing guidelines
do not violate constitutional due process guarantees. United
States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1991), cert.
denied, 502 U.S. 1038 (1992). This Court noted that Congress was
entitled to treat the two substances differently because they are
different chemical substances that are prepared for use in
different manners. Id.; Galloway, 951 F.2d at 65. "[T]he fact
that crack cocaine is more addictive, more dangerous, and can
therefore be sold in smaller quantities is reason enough for
providing harsher penalties for its possession." United States v.
Watson, 953 F.2d 895, 898 (5th Cir.), cert. denied, 112 S. Ct. 1989
(1992).
Lampkin concedes that his argument is foreclosed by this
Court's precedent; he suggests that this Court should vacate its
prior holdings which relied upon the conclusion that crack and
cocaine powder are different chemical substances. Citing Galloway,
951 F.2d at 65. A prior panel opinion may be overruled only by an
"overriding Supreme Court decision," a change in statutory law, or
this Court sitting en banc. See United States v. Zuniga-Salinas,
952 F.2d 876, 877 (5th Cir. 1992) (en banc).
As the Supreme Court has noted, the rule of lenity applies to
cases where the "text, structure, and history" of a statute are
ambiguous. United States v. Granderson, 114 S. Ct. 1259, 1267
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(1994). Lampkin's argument that § 841 is ambiguous because crack
cocaine and cocaine powder are "synonymous terms" is not persuasive
because his arguments are foreclosed by controlling case law. See
Thomas, 932 F.2d at 1090.
Lampkin argues that the disparate sentencing provisions for
crack and cocaine powder disproportionately affect African-
Americans and Hispanic Americans, and thus, constitute a violation
of his right to equal protection. As Lampkin indirectly concedes,
his argument is foreclosed by this Court's precedent. This Court
has rejected equal protection challenges to the sentencing scheme.
E.g., Watson, 953 F.2d at 897-98. "Even if a neutral law has a
disproportionately adverse effect upon a racial minority, it is
unconstitutional under the Equal Protection Clause only if that
impact can be traced to a discriminatory purpose." Galloway, 951
F.2d at 65 (internal quotation and citation omitted). Because
Lampkin has not demonstrated that there was a discriminatory intent
behind the classification of the drugs, it "will survive an equal
protection analysis if it bears a rational relationship to a
legitimate end". Id. at 66.
The judgment of the district court is AFFIRMED.
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