9 F.3d 118
UNITED STATES of America, Plaintiff-Appellee,
Sylvester HUTCHINSON, Defendant-Appellant.
United States Court of Appeals, Tenth Circuit.
Nov. 5, 1993. Judges.
ORDER AND JUDGMENT1
Before ANDERSON, ENGEL2 and KELLY, Circuit
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Defendant-Appellant Sylvester Hutchinson appeals from his sentence of conviction for various drug-related offenses, 21 U.S.C. 841(a)(1), 843(b), 846, contending that (1) the 100 to 1 disparity between cocaine and cocaine base (crack) for sentencing purposes violates his right to equal protection under the Fifth Amendment, (2) his sentence of life imprisonment without parole is cruel and unusual in derogation of the Eighth Amendment, and (3) the racially disparate impact of the pertinent Guideline provision justifies a downward departure. Our jurisdiction arises under 28 U.S.C. 1291 and 18 U.S.C. 3742 and we affirm.
We have held that the Sentencing Guidelines comport with equal protection principles embodied in the Fifth Amendment in a similar challenge. See United States v. Thurmond, 1993 WL 410034 at * 3-* 6 (10th Cir.1993). Accordingly, this argument is foreclosed.
Likewise, Mr. Hutchinson's argument that a mandatory sentence of life imprisonment without parole constitutes a violation of the Eight Amendment's proscription against cruel and unusual punishment has been rejected by this court. See United States v. Angulo-Lopez, 1993 WL 429776 at * 2 (10th Cir.1993) (citing Harmelin v. Michigan, 111 S.Ct. 2680 (1991) and Solem v. Helm, 463 U.S. 277, 290-92 (1983)).
Finally, Mr. Hutchinson wishes us to remand to the district court for findings whether the disparate impact of the Guidelines would allow a judge to depart downward. Because Mr. Hutchinson did not request such a downward departure from the district court, we decline to review such an argument made for the first time on appeal. See United States v. Mendoza-Lopez, 1993 WL 429779 at * 4 fn.3 (10th Cir.1993) (citation omitted); United States v. Howard, 998 F.2d 42, 50 (2d Cir.1993) (citations omitted).
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3
The Honorable Albert J. Engel, Senior United States Circuit Judge for the United States Court of Appeals-Sixth Circuit, sitting by designation