                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               NOV 7 1997
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                        No. 96-1499
          v.                                               (D. Colorado)
 KERI PORTER, also known as                           (D.C. No. 96-CR-86-Z)
 Blacky,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Keri Porter entered a conditional guilty plea to the charge of possession

with the intent to distribute crack cocaine and was sentenced to 57 months’

imprisonment and five years’ supervised release. The single issue on appeal is

whether the penalty disparity between powder and crack cocaine as provided in 21

U.S.C. § 841(b)(1) and USSG § 2D1.1 is constitutional. In particular, the

Defendant asserts that the penalty provisions are racially discriminatory in

violation of the equal protection and due process clauses of the Fourteenth

Amendment, constitute cruel and unusual punishment in violation of the Eighth

Amendment, and are void for vagueness. Appellant’s Br. at 5.

      In raising this issue, the Defendant openly acknowledges that this circuit

has consistently upheld the penalty disparity between powder and crack cocaine in

the face of constitutional challenges, and asserts the only reason for bringing the

issue yet again before this court is to preserve the issue for possible review by the

United States Supreme Court. Appellant’s Br. at 5.

      It is the law of this circuit that the penalty provisions outlined in 21 U.S.C.

§ 841(b)(1) and USSG § 2D1.1 are constitutional. See United States v.

Williamson, 53 F.3d 1500, 1503 (10th Cir. 1995) (holding that USSG § 2D1.1 is

not violative of equal protection); United States v. Ashley, 26 F.3d 1008, 1013

(10th Cir. 1994) (holding that the penalty disparity between powder and crack

cocaine does not violate due process or equal protection); United States v.


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Thurmond, 7 F.3d 947, 951-52 (10th Cir. 1993) (holding that penalty disparity

between powder and crack cocaine does not violate due process and was not

enacted for a discriminatory purpose); United States v. Easter, 981 F.2d 1549,

1557-59 (10th Cir. 1992) (holding that 21 U.S.C. § 841(b)(1) and USSG § 2D1.1

do not violate equal protection and are not void for vagueness); United States v.

Turner, 928 F.2d 956, 960 (10th Cir. 1991) (holding that penalty disparity

between powder and crack cocaine does not violate due process).

      Accordingly, the sentence imposed by the district court is AFFIRMED.

                                              Entered for the Court


                                              Stephen H. Anderson
                                              Circuit Judge




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