* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-30131

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERIC LAMPKIN,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

(94 CR 50058 ALL)

( August 25, 1995 )

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

Background

Eric Lampkin was convicted following a guilty plea of

conspiracy to distribute and possession with intent to distribute

cocaine base (crack) and cocaine hydrochloride. He was sentenced
2

to a 180-month term of imprisonment, a five-year period of

supervised release, and a $50 special assessment. In the district

court, Lampkin filed objections to the PSR, arguing that "cocaine

base is a term synonymous with cocaine and that ... as a result ...

the penalty provisions of [21 U.S.C. § 841] set out a

scientifically meaningless distinction between cocaine and cocaine

base and the heightened penalty provisions for cocaine base which

unfairly [a]ffect racial minorities". Lampkin did not challenge

the probation officer's drug quantity calculations; rather, he

argued that this court incorrectly decided United States v.

Galloway, 951 F.2d 64, 66 (5th Cir. 1992). 

Opinion

Lampkin argues that the district court erred in refusing to

invoke the rule of lenity when applying the provisions of 21 U.S.C.

§ 841 for sentencing purposes; he argues that he should have been

sentenced according to the sentencing provisions for cocaine powder

rather than those for cocaine base. He argues that scientists find

no chemical difference between crack and cocaine hydrochloride

powder and that the United States Sentencing Commission, in a

recent report, concurred with that finding. Lampkin argues that

because "[c]ocaine base is synonymous with cocaine ... the penalty

provisions of 21 U.S.C. [§] 841 set out a scientifically

meaningless distinction between cocaine and cocaine base". Lampkin

notes that in its report, the Sentencing Commission concluded that

it could not support the current penalty scheme because any
3

differentiating factors between crack and cocaine powder do not

approach the level of the 100 to 1 sentencing ratio. 

This Court has held that the disparate sentencing provisions

for crack cocaine and cocaine powder in the sentencing guidelines

do not violate constitutional due process guarantees. United

States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1991), cert.

denied, 502 U.S. 1038 (1992). This Court noted that Congress was

entitled to treat the two substances differently because they are

different chemical substances that are prepared for use in

different manners. Id.; Galloway, 951 F.2d at 65. "[T]he fact

that crack cocaine is more addictive, more dangerous, and can

therefore be sold in smaller quantities is reason enough for

providing harsher penalties for its possession." United States v.

Watson, 953 F.2d 895, 898 (5th Cir.), cert. denied, 112 S. Ct. 1989

(1992). 

Lampkin concedes that his argument is foreclosed by this

Court's precedent; he suggests that this Court should vacate its

prior holdings which relied upon the conclusion that crack and

cocaine powder are different chemical substances. Citing Galloway,

951 F.2d at 65. A prior panel opinion may be overruled only by an

"overriding Supreme Court decision," a change in statutory law, or

this Court sitting en banc. See United States v. Zuniga-Salinas,

952 F.2d 876, 877 (5th Cir. 1992) (en banc). 

As the Supreme Court has noted, the rule of lenity applies to

cases where the "text, structure, and history" of a statute are

ambiguous. United States v. Granderson, 114 S. Ct. 1259, 1267
4

(1994). Lampkin's argument that § 841 is ambiguous because crack

cocaine and cocaine powder are "synonymous terms" is not persuasive

because his arguments are foreclosed by controlling case law. See

Thomas, 932 F.2d at 1090.

Lampkin argues that the disparate sentencing provisions for

crack and cocaine powder disproportionately affect AfricanAmericans and Hispanic Americans, and thus, constitute a violation

of his right to equal protection. As Lampkin indirectly concedes,

his argument is foreclosed by this Court's precedent. This Court

has rejected equal protection challenges to the sentencing scheme.

E.g., Watson, 953 F.2d at 897-98. "Even if a neutral law has a

disproportionately adverse effect upon a racial minority, it is

unconstitutional under the Equal Protection Clause only if that

impact can be traced to a discriminatory purpose." Galloway, 951

F.2d at 65 (internal quotation and citation omitted). Because

Lampkin has not demonstrated that there was a discriminatory intent

behind the classification of the drugs, it "will survive an equal

protection analysis if it bears a rational relationship to a

legitimate end". Id. at 66.

The judgment of the district court is AFFIRMED.