United States v. Martin

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10532 Conference Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ANTHONY DARRELL MARTIN,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:94CR00149 - - - - - - - - - - April 18, 1996 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Anthony Darrell Martin appeals from his sentence following a

guilty plea for money laundering, in violation of 18 U.S.C.

§ 1956(a)(1). Martin argues that the disparity in the penalty

provisions and sentencing guidelines applicable to crack cocaine

and cocaine powder violates his equal protection and due process

rights. Martin argues that the district court erred in

considering the guidelines for cocaine base under U.S.S.G.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-10532 -2-

§ 2D1.1 because he never possessed or distributed crack cocaine

and his "attempt" to do so was never fulfilled.

The argument that the disparate sentencing provisions for

crack cocaine and cocaine powder in the sentencing guidelines

violate the Equal Protection and Due Process Clauses has been

rejected. See United States v. Galloway, 951 F.2d 64, 65-66 (5th

Cir. 1992). In the factual resume supporting the guilty plea,

Martin stipulated to negotiating a drug transaction involving two

kilograms of crack cocaine. Under § 1B1.2(a), which provides in

part that in the case of a plea agreement containing a

stipulation that specifically establishes a more serious offense

than the offense of conviction, the offense guideline is

determined based on the section in Chapter Two most applicable to

the stipulated offense. The district court did not err in

sentencing Martin under § 2D1.1, the applicable provision for the

stipulated drug trafficking offense.

AFFIRMED.