___________ 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___________ United States of America, * [UNPUBLISHED] * Appellee, * * v. * * Tyrone Lamont Woods, * * Appellant.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. *

### The Honorable Elmo B. Hunter, United States District Judg e 1 

### for the Western District of Missouri. -2- ___________ 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. (defen dants), were charged with conspiring over a five-year period t o distribute and to possess with intent to distribute cocaine powder an d cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. In March 1995, Scalli on 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 eac h defendant's arguments in turn.

SCALLION Prior to her June 1995 sentencing hearing, the distr ict court denied 1 Scalli on's motion to continue sentencing until November, by which tim e Congres s was to act on a proposed Guidelines amendment equalizing th e penalties for cocaine powder and cocaine base. At sentencing, the distric t court granted the government's substantial-assistance downward-departur e motion under U.S.S.G. § 5K1.1, p.s., and 18 U.S.C. § 3553(e), and sentence d Scallion to 108 months imprisonment and five yea rs supervised release. On appea l, Scallion argues the district court erred in denying her a continuance, and violated her equal protection rights by not sentencing he r in accordance with the proposed Guidelines

### The Honorable Elmo B. Hunter, United States District Judg e 2 

### for the Western District of Missouri. -3- amendment.

We reject these arguments. First, because Scallion was merel y speculating that Congress would adopt the propos ed amendment, the district court did not abuse its discretion in denying Scallion's continuanc e motion. See United S tates v. Ulrich , 953 F.2d 1082, 1085 (8th Cir. 1991) (standard of review). Moreover, Scallion was no t 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. 33 4 (1995). Second, the district court did not err by failing to sentenc e Scallion under a proposed but unadopted Guidelines amendment.

WOODS
Before Woods's July sentencing hearing, the government filed a substantial-assistanc e downward-departure motion under section 5K1.1. At sentencing, Woods asserted that he was entitled to departure below th e statutory minimum. The district court rejected Woods's assert ion, granted 2 the government's motion, and sentenced Woods to 120 months imprisonment an d five years supervised release.

Sect ion 841(b)(1)(A) sets a ten-year (120-month) mandatory minimu m 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 governmen t, 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 eve n allege--that the government withheld such a motion in bad faith or based on

### The Honorable Fernando J. Gaitan, Jr., Un ited States District 3 

### Judge for the Western District of Missouri. -4- 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 t o 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 Crimina l Justice Act, 18 U.S.C. § 3006A; counsel argues the reductio n 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 obje ctions to the rec ommendations set forth in his presentence report (PSR). A t senten cing, Collins failed to state the specific grounds for hi s objections, beyond asserting his innocence; he argued only that he wa s entitl ed to downward departures under U.S.S.G. §§ 5K2.11, p.s. (lesse r harms), and 5K2.12, p .s. (coercion and duress), and that the court should consid er the disparity between penalties for cocaine powder and cocain e bas e and sentence Collins under the proposed Guidelines amendmen t equali zing those penalties. The district court denied Collins' s 3 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 i n calculating the quantity of drugs used to determine his base offense level
. Because Collins did not preserve this issue for

### -5-

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)
.
Co llins further argues the district court erred in denying him a downw ard departure under section 5K2.12. As the record shows that th e court knew it had authority to grant such a departure, we conclude th e court's exercise of discretion is unreviewable. See United States v
. Trupiano , 11 F.3d 769, 776 (8th Cir. 1993). Collins's equal protection an d Eighth Amendment challenges to the disparity bet ween penalties for cocaine powder and cocaine base are foreclosed by United States v. Thompson , 5 1 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 wa s 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.