___________

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United States of America, * [UNPUBLISHED]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 Judge

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.

(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 court denied 1

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
 The Honorable Elmo B. Hunter, United States District Judge

2

for the Western District of Missouri.

-3-

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 court rejected Woods's assertion, granted 2

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
 The Honorable Fernando J. Gaitan, Jr., United 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 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

equalizing 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 in

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).

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.