United States v. Johnson

Opinion

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.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 97-CR-209-2-T - - - - - - - - - -

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.