### The Honorable William R. Wilson, United S tates District Judge 1 

### for the Eastern District of Arkansas. ___________ No. 95-1736

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Robert L. Perry, * * [UNPUBLISHED] Appellant. *

___________ Submitted: November 29, 1995 Filed: December 4, 1995

___________ Before BOWMAN, BEAM, and MURPHY, Circuit Judges.

___________ PER CURIAM.
Robert L. Perry appeals the district court's denia l of his motion to 1 withdrawhis guilty plea, and he also appeals his 63-month sentence. We affirm.

Perrypleaded guilty to one count of distributing cocaine bas e (crack), in violation of 21 U.S.C. § 841(a). On the day of sentencing-- alm ost three months after pleading guilty--Perry moved to withdraw hi s plea. At the hearingon his motion, Perry testified that he was innocent and had believed, bas ed on conversations with his attorney, that he would be sentenced to between 18 and 60 months imprisonment, as opposed to the higher sentencing range reflected in his presentence report. He als o testified that he pleaded guilty, and falsely affirmed the factual

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basis for his plea, because he was nervous and feared that he would receiv e
a higher se ntence if he was tried and convicted by a jury. Perry' s attorneytestified that he could not confirm discussing with Perry th e possibility of an 18-month sentence. The district court denied the motion , reminding Perry that it had advised him of the difficulty of predicting th e Guidelines range, and that Perry had affirmed no promises were made to him to induce his guilty plea.

We con clude the district court did not abuse its discretion i n denying Perry's motion to withdraw his guilty plea, because Perry failed to establish a fair and just reason for doing so . Fed. R. Crim. P. 32(e); United States v. Newson , 46 F.3d 730, 732 (8th Cir. 1995) (standard o f review); United States v. Yell , 18 F.3d 581, 582-83 (8th Cir. 1994 ) (spurious and incredi ble claim that guilty plea was involuntary result of mental stress is not fair and just reason permitting withdrawal); United States v. Ludwig , 972 F.2d 948, 951 (8th Cir. 19 92) (unsupported assertion of innocence not sufficient to overturn denial of motion to withdraw) ; Uni ted States v. Jones , 979 F.2d 317, 318 (3d Cir. 1992) (fear o f punishment is inadequate reason to force government to try defendant who acknowledged his guilt); United States v. Morris on , 967 F.2d 264, 268 (8th Cir. 1992) (assertion of innocence--"even a `swift change of heart after the plea'"--is not fair and just reason for with drawing plea) (quoted case omitted).

Eve n if Perry's counsel told him he would receive an 18-mont h sentence and Perry relied on that representation in pleading guilty, the change -of-plea transcript shows that Perry was notified of the possibl e punishment and that the Guidelines would apply. See Ludwig , 972 F.2d at 950-51. Moreover, Pe rry was fully informed of the rights he was waiving, and his plea-hearing representations support the district court's finding that he k nowingly and voluntarily pleaded guilty. See Yell , 18 F.3d a t 582-83. In such

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a case, t he occasion for setting aside a guilty plea seldom arises

. Newson , 46 F.3d at 730.

We conclude Perry's constitutional challenge to the 100-to-1 rati o between the penalties for crack cocaine and powder cocaine is meritless. We hav e consistently rejected the claim that any disparate impac t occasioned by the distinction between the penalties for crack and powder cocaine violates the Equal Protection Clause. See United States v

. Delaney , 52 F.3d 182, 189 (8th Cir.), cert. deni ed , 116 S. Ct. 209 (1995); United States v. Clary , 34 F.3d 709, 710-14 (8th Cir. 1994), cert. denied , 115 S. Ct. 1172 (1995 ). While Perry urges us to overturn Clary , only the court en banc can overturn the decision of another panel of this court , United States v. Polanco , 53 F.3d 893, 896 (8th Cir. 1995), pet. for cert. filed , No . 95-5022 (U.S. June 29, 1995), and we recently refused t o reconsider our decisi on in Clary , United States v. Thompson , 51 F.3d 122, 127 (8th Cir. 1995).
Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.