110 F3d 66 United States v. Ware

110 F.3d 66

UNITED STATES of America, Plaintiff-Appellee,
Allen WARE, Defendant-Appellant.

No. 95-1896.

United States Court of Appeals, Sixth Circuit.

March 21, 1997.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before: MERRITT, KRUPANSKY, and BOGGS, Circuit Judges.


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Allen Ware appeals a district court judgment of conviction and sentence. The parties have waived oral argument and this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).


In 1995, Ware pleaded guilty to distributing cocaine base in violation of 21 U.S.C. § 841 and the district court sentenced him to 120 months of imprisonment and eight years of supervised release and the court imposed a $50 special assessment. Ware has filed a timely appeal, in which he argues that the sentencing disparity between powder cocaine and crack cocaine is unconstitutional.


We initially note that Ware did not raise his challenge to the sentencing disparity between powder cocaine and crack cocaine in the district court at the time of his sentencing. Consequently, his claim is reviewed only for plain error. See Fed.R.Crim.P. 52(b); United States v. Sherrod, 33 F.3d 723, 724 (6th Cir.1994), cert. denied, 115 S.Ct. 1317 (1995).


Ware's argument is without merit. Ware asserts that the sentencing scheme under 21 U.S.C. § 841(b) and the Sentencing Guidelines, which provides that an offense involving one gram of crack cocaine carries the same penalty as an offense involving 100 grams of powder cocaine, is unconstitutional. However, this court has repeatedly held that this sentencing scheme does not violate the Eighth Amendment's prohibition against cruel and unusual punishment nor the Fifth Amendment's guarantees of due process and equal protection. See, e.g., United States v. Bingham, 81 F.3d 617, 630 (6th Cir.) (equal protection guarantee not violated), cert. denied, 117 S.Ct. 250 (1996); United States v. Pickett, 941 F.2d 411, 418-19 (6th Cir.1991) (substantive due process and Eighth Amendment not violated).


Accordingly, this court affirms the district court's judgment.