United States v. Cynthia Bell ( 1996 )

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No. 95-2962
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Cynthia Bell, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 29, 1995
Filed: January 19, 1996
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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
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PER CURIAM.
Cynthia Bell, an African-American, appeals the 60-month
sentence imposed by the district court1 after she pleaded guilty to
conspiring to possess cocaine base (crack) with intent to
distribute, and to possessing crack with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
Following the preparation of her presentence report, Bell
objected to her offense-level calculation. Bell contended that no
scientific difference existed between crack cocaine and powder
cocaine, and that the penalty provisions set forth in 21 U.S.C.
§ 841(b) were thus rendered inapplicable by operation of the rule
of lenity. She also argued that Congress enacted section 841(b) in
1
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
an arbitrary and irrational manner, resulting in a disparate impact
upon African-Americans in violation of her due process and equal
protection rights.
Bell relied on United States v. Davis, 864 F. Supp. 1303 (N.D.
Ga. 1994), appeal pending (No. 95-8057 11th Cir.), in which the
district court, after an evidentiary hearing, held that the terms
"cocaine" and "cocaine base" were synonymous; that the penalty
provisions of section 841(b) set forth a scientifically meaningless
distinction between cocaine and cocaine base; and that the
heightened penalties for cocaine base must be ignored by operation
of the rule of lenity. 864 F. Supp. at 1309. In support, Bell
submitted copies of the Davis court records--including Davis's
memorandum of law, the hearing transcript, and the district court's
decision. Bell renews her claims on appeal.
We conclude Bell's rule-of-lenity argument is foreclosed by
our decision in United States v. Jackson, 64 F.3d 1213, 1219-20
(8th Cir. 1995), and her due process and equal protection arguments
are foreclosed by our decision in United States v. Jackson, 67 F.3d
1359, 1367 (8th Cir. 1995). We need not address Bell's contention
that a "less deferential" or "heightened" rational-basis test
applies, because she did not raise this argument below and there is
no plain error. See Fritz v. United States, 995 F.2d 136, 137 (8th
Cir. 1993), cert. denied, 114 S. Ct. 887 (1994).
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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