United States v. Smith ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4778
LAMONT DAVID SMITH,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4779
LAMONT DAVID SMITH,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-36, CR-96-9)
Submitted: May 29, 1997
Decided: June 18, 1997
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Howard G. Higgins, Jr., Morgantown, West Virginia, for Appellant.
William D. Wilmoth, United States Attorney, Lisa Grimes Johnston,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Lamont David Smith appeals his 360-month sentence for conspir-
acy to possess with intent to distribute and distribute crack cocaine,
21 U.S.C. § 846 (1994), and the concurrent 60-month sentence he
received for escape.* 18 U.S.C. § 751(a) (1994). Smith argues that his
sentence is disproportionate to the gravity of his offense. He also con-
tends that the sentencing ratio for crack offenses relative to powder
cocaine offenses violates equal protection. Because neither issue was
raised in the district court, our review is limited to plain error. United
States v. Olano, 507 U.S. 725, 732-36 (1993). Finding no plain error,
we affirm.
In his plea agreement, Smith stipulated that he was responsible for
the distribution of 50-150 grams of crack and that he had an aggra-
vated role in the drug offense. With enhancements for possession of
a firearm, obstruction of justice, and assault on the officer guarding
him when he escaped, Smith had a final offense level of 40. He was
in criminal history category V, which gave him a guideline range of
360 months to life. He received the lowest sentence possible without
a departure. No proportionality review is appropriate for sentences of
less than life without possibility of parole. United States v. Polk, 905
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*The counts were brought in separate indictments but were grouped
together for determination of the offense level because the escape count
embodied conduct that is treated as a specific offense characteristic
(obstruction of justice) in the conspiracy count. United States Sentencing
Commission, Guidelines Manual § 3D1.2(c) (Nov. 1995).
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F.2d 54, 55 (4th Cir. 1990). Consequently, Smith's claim that his sen-
tence violates the Eighth Amendment is without merit.
Smith's second claim is also unavailing. We have repeatedly
rejected equal protection challenges to the penalties for crack cocaine.
See United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996),
cert. denied, ___ US. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997)
(No. 96-6868).
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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