United States v. Donald Larkin Jr. ( 1996 )

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No. 95-2772
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Donald Larkin, Jr., * [UNPUBLISHED]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.
Donald Larkin, Jr., an African-American, appeals the 181-month
sentence imposed by the district court1 after he pleaded guilty to
possessing cocaine base (crack) and cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and possessing
a firearm in relation to a drug trafficking offense, in violation
of 18 U.S.C. § 924(c). We affirm.
Following the preparation of his presentence report, Larkin
objected to his offense-level calculation. Larkin 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
1
The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
of lenity. He also argued that Congress enacted section 841(b) in
an arbitrary and irrational manner, resulting in a disparate impact
upon African-Americans in violation of his due process and equal
protection rights.
Larkin 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, Larkin submitted copies of the Davis court records--
including Davis's memorandum of law, the hearing transcript, and
the district court's decision. Larkin renews his claims on appeal.
We conclude Larkin'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 his 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 Larkin's
contention that a "less deferential" or "heightened" rational-basis
test applies, because he 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.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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