United States v. Bey

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 25 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 97-3150 v. (D.C. No. 94-CR-20075) NEWTON O. BEY, a/k/a James Noel, (D. Kan.) a/k/a Newt, Defendant - Appellant.

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and the appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Pursuant to a plea agreement, Defendant, Mr. Newton Bey, pled guilty to two

counts of a six-count indictment charging narcotics law violations and possession of a

firearm in relation to a drug trafficking crime. Defendant appeals his sentence on Count

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 of 10th Cir. R. 36.3. V, the count of conviction charging him with distributing 35.7 grams of cocaine base in

violation of 21 U.S.C. § 841(a)(1). See R., Vol. I, Doc. 1 at 3; Doc. 128. The district

court determined that Defendant’s criminal history and offense level resulted in a

sentencing guidelines range of 135 to 168 months incarceration for Count V. See id.,

Doc. 152 at 8-9; U.S. Sentencing Guidelines Manual § 2D1.1(c)(4) & Table. Defendant

was sentenced to 135 months of incarceration on the drug distribution charge and to a

mandatory consecutive sentence of five years incarceration on the charge of possessing a

weapon in relation to the drug offense. See R., Vol. I, Doc. 1 at 11-12. On appeal,

Defendant claims that the U.S. Sentencing Guidelines and 21 U.S.C. § 841(b)(1)(B)

punish crimes involving cocaine base more harshly than crimes involving powder

cocaine, even though the two substances are chemically indistinguishable. See

Appellant’s Br. at 5. Defendant maintains that because there is no valid basis for the

discrepancy in punishing cocaine offenses, the statute under which he was sentenced and

the sentencing guidelines are unconstitutionally vague and violate the Fifth Amendment’s

guarantees of due process and equal protection. See id. at 7-9. Defendant argues that his

sentence also violates the Eight Amendment’s prohibition against cruel and unusual

punishment. See id. at 9.

Defendant failed to raise these claims in the district court, see Appellant’s Br. at 6;

therefore, we review the Defendant’s sentence only for plain error. See United States v.

Easter, 981 F.2d 1549, 1557 (10th Cir. 1992), cert. denied, 508 U.S. 953 (1993). “To

-2- constitute plain error, the deficiency must be obvious and substantial and affect the

fundamental fairness, reputation, or integrity of the trial. However, we apply the plain

error rule less rigidly when reviewing a potential constitutional error.” Id. (citation

omitted).

In his appeal, Defendant asks this court to ignore the precedent of this and other

circuits and announce that 21 U.S.C. § 841(b)(1)(B), and the corresponding sentencing

guideline, U.S.S.G. § 2D1.1, are unconstitutional. See Appellant’s Br. at 8. We are

bound by circuit precedent, and therefore AFFIRM the sentence imposed by the district

court. See United States v. Williamson, 53 F.3d 1500, 1530 (10th Cir.), cert. denied sub

nom. Dryden v. United States, ___ U.S. ___, 116 S. Ct. 218 (1995); United States v.

Thurmond, 7 F.3d 947, 951-52 (10th Cir. 1993), cert. denied, 510 U.S. 1199 (1994);

accord United States v. Washington, 127 F.3d 510, 516-18 (6th Cir. 1997); but see United

States v. Armstrong, 517 U.S. 456, ___, 116 S. Ct. 1480, 1492-94 (1996) (Stevens, J.,

dissenting). Defendant’s sentence is within the prescribed statutory limits; therefore, we

conclude that his sentence does not violate the Eight Amendment’s prohibition against

cruel and unusual punishment. See United States v. Youngpeter, 986 F.2d 349, 355 (10th

Cir. 1993).

AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge

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