United States v. Elizabeth Scallion ( 1996 )


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  •      ___________
    No. 95-2705
    ___________
    United States of America,      *
    *
    Appellee,           *
    *
    v.                        *
    *
    Elizabeth A. Scallion,         *
    also known as Elizabeth        *
    Woods, Elizabeth A. Collins,   *
    and Elizabeth S. Collins,      *
    *
    Appellants.         *
    ___________                   Appeals from the United States
    District Court for the
    No. 95-2914                   Western District of Missouri.
    ___________
    United States of America,      *      [UNPUBLISHED]
    *
    Appellee,           *
    *
    v.                        *
    *
    Tyrone Lamont Woods,           *
    *
    Appellant.          *
    ___________
    No. 95-3077
    ___________
    United States of America,      *
    *
    Appellee,           *
    *
    v.                        *
    *
    Ira M. Collins, Jr., also      *
    known as Ira G. Collins,       *
    *
    Appellants.         *
    ___________
    Submitted:     April 22, 1996
    Filed:     April 24, 1996
    ___________
    Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
    ___________
    PER CURIAM.
    Elizabeth A. Scallion, Tyrone Lamont Woods, and Ira M. Collins, Jr.
    (defendants), were charged with conspiring over a five-year period to
    distribute and to possess with intent to distribute cocaine powder and
    cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.
    In March 1995, Scallion and Woods pleaded guilty pursuant to written plea
    agreements; in April 1995, a jury found Collins guilty of the charge.
    Defendants appeal, and we affirm, addressing each defendant's arguments in
    turn.
    SCALLION
    Prior to her June 1995 sentencing hearing, the district court1 denied
    Scallion's motion to continue sentencing until November, by which time
    Congress was to act on a proposed Guidelines amendment equalizing the
    penalties for cocaine powder and cocaine base.           At sentencing, the district
    court granted the government's substantial-assistance downward-departure
    motion under U.S.S.G. § 5K1.1, p.s., and 18 U.S.C. § 3553(e), and sentenced
    Scallion to 108 months imprisonment and five years supervised release.                 On
    appeal,     Scallion   argues   the   district   court    erred   in   denying   her   a
    continuance, and violated her equal protection rights by not sentencing her
    in accordance with the proposed Guidelines
    1
    The Honorable Elmo B. Hunter, United States District Judge
    for the Western District of Missouri.
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    amendment.
    We reject these arguments.     First, because Scallion was merely
    speculating that Congress would adopt the proposed amendment, the district
    court did not abuse its discretion in denying Scallion's continuance
    motion.     See United States v. Ulrich, 
    953 F.2d 1082
    , 1085 (8th Cir. 1991)
    (standard of review).    Moreover, Scallion was not prejudiced by the denial
    of the motion, see 
    id., because Congress
    rejected the proposed amendment,
    see Federal Sentencing Guidelines, Pub. L. No. 104-38, 109 Stat. 334
    (1995).     Second, the district court did not err by failing to sentence
    Scallion under a proposed but unadopted Guidelines amendment.
    WOODS
    Before Woods's July sentencing hearing, the government filed a
    substantial-assistance downward-departure motion under section 5K1.1.     At
    sentencing, Woods asserted that he was entitled to departure below the
    statutory minimum.    The district court2 rejected Woods's assertion, granted
    the government's motion, and sentenced Woods to 120 months imprisonment and
    five years supervised release.
    Section 841(b)(1)(A) sets a ten-year (120-month) mandatory minimum
    sentence for a defendant convicted under section 841(a)(1) of distributing
    or possessing with intent to distribute at least 5 kilograms of cocaine or
    50 grams of cocaine base.      Woods was subject to that mandatory minimum.
    Absent a section 3553(e) motion by the government, a district court cannot
    sentence a defendant below a mandatory statutory minimum.     At sentencing,
    Woods failed to make a substantial threshold showing--and did not even
    allege--that the government withheld such a motion in bad faith or based
    on
    2
    The Honorable Elmo B. Hunter, United States District Judge
    for the Western District of Missouri.
    -3-
    an unconstitutional motive.          See United States v. Kelly, 
    18 F.3d 612
    , 617-
    18 (8th Cir. 1994).         Thus, Woods's sentence is unreviewable.                 See United
    States v. Baker, 
    64 F.3d 439
    , 441 (8th Cir. 1995) (sentence unreviewable
    where       sentencing court departed from applicable Guidelines range to
    statutory mandatory minimum sentence pursuant to § 5K1.1).
    Woods also argues he was denied his Sixth Amendment right to counsel
    because the district court reduced his appointed counsel's fee under the
    Criminal Justice Act, 18 U.S.C. § 3006A; counsel argues the reduction
    denied him reasonable compensation.               These arguments are meritless.             See
    United States v. Jones, 
    801 F.2d 304
    , 315 (8th Cir. 1986).
    COLLINS
    Before his August 1995 sentencing hearing, Collins made no objections
    to the recommendations set forth in his presentence report (PSR).                             At
    sentencing,      Collins    failed     to   state       the    specific    grounds    for    his
    objections, beyond asserting his innocence; he argued only that he was
    entitled to downward departures under U.S.S.G. §§ 5K2.11, p.s. (lesser
    harms), and 5K2.12, p.s. (coercion and duress), and that the court should
    consider the disparity between penalties for cocaine powder and cocaine
    base    and    sentence    Collins     under      the   proposed    Guidelines       amendment
    3
    equalizing      those     penalties.        The    district      court     denied    Collins's
    sentencing requests, adopted the PSR, and sentenced Collins to 324 months
    imprisonment and five years supervised release.
    On    appeal,   Collins   first      argues      the    district    court    erred    in
    calculating the quantity of drugs used to determine his base offense level.
    Because Collins did not preserve this issue for
    3
    The Honorable Fernando J. Gaitan, Jr., United States District
    Judge for the Western District of Missouri.
    -4-
    appeal, and we see no gross miscarriage of justice, we do not address the
    issue.   See United States v. Williams, 
    994 F.2d 1287
    , 1294 (8th Cir. 1993).
    Collins further argues the district court erred in denying him a
    downward departure under section 5K2.12.      As the record shows that the
    court knew it had authority to grant such a departure, we conclude the
    court's exercise of discretion is unreviewable.       See United States v.
    Trupiano, 
    11 F.3d 769
    , 776 (8th Cir. 1993).   Collins's equal protection and
    Eighth Amendment challenges to the disparity between penalties for cocaine
    powder and cocaine base are foreclosed by United States v. Thompson, 
    51 F.3d 122
    , 127 (8th Cir. 1995), and the district court did not err in not
    sentencing him under the proposed but unadopted Guidelines amendment.
    Collins also argues--for the first time on appeal--that he was
    entitled to a two-level reduction under U.S.S.G. § 3B1.2(b) for being a
    minor participant, and a downward departure under U.S.S.G. § 5H1.4, p.s.
    (physical condition).    In the absence of a gross miscarriage of justice,
    we will not consider these issues.    See 
    Williams, 994 F.2d at 1294
    .
    The judgments are affirmed.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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