1

The Honorable Howard F. Sachs, United States District Judge

for the Western District of Missouri. 

___________

No. 95-2733

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Western District of Missouri.

Aaron Elliott Rimson, *

 * [UNPUBLISHED]

Appellant. *

___________

 Submitted: December 29, 1995

 Filed: January 4, 1996 ___________

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

PER CURIAM.

Aaron Elliott Rimson, an African-American, appeals the 135-

month sentence imposed by the district court1 after he pleaded

guilty to distributing cocaine base (crack), in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.

In February 1995, the United States Sentencing Commission

published a report setting forth, inter alia, its conclusion that

the 100-to-1 ratio between the penalties for crack cocaine and

powder cocaine set forth in 21 U.S.C. § 841(b) and the Sentencing

Guidelines was not justified. The Commission later forwarded to

Congress a proposed Guidelines amendment that would have eliminated

the distinction, and a recommendation that Congress similarly amend

section 841(b). See 60 Fed. Reg. 25,074, 25,075-77 (1995).
 2

Federal Sentencing Guidelines, Amendment, Disapproval, Pub.

L. No. 104-38, 1995 U.S.S.C.A.N. (109 Stat.) 334.

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The district court denied Rimson's motion to continue his

sentencing until after Congress had an opportunity to consider the

proposed amendment. At sentencing, Rimson requested a downward

departure, see U.S.S.G. § 5K2.0, based on the Commission's

conclusion and the proposed amendment. The district court denied

Rimson's request, concluding it was not authorized to depart.

We first conclude the district court did not abuse its

discretion in denying Rimson a continuance. Rimson's contention

that Congress would adopt the proposed amendment was speculative,

and because Congress rejected the proposed amendment,2 Rimson was

not prejudiced by the denial of his motion. See United States v.

Ulrich, 953 F.2d 1082, 1085 (8th Cir. 1991); see also United States

v. West, 878 F.2d 1111, 1112 (8th Cir. 1989) (only unreasoning and

arbitrary insistence upon expeditiousness in face of justifiable

continuance request is grounds for reversal); cf. United States v.

Lamere, 980 F.2d 506, 512 (8th Cir. 1992) (court could not have

erred by failing to consider application note that was merely

proposed but never adopted as part of Guidelines).

Second, we reject Rimson's argument that section 841(b) is

ambiguous and irrational, and has a discriminatory impact on

African-Americans. See United States v. Jackson, 67 F.3d 1359,

1367 (8th Cir. 1995). Rimson urges us to reconsider our decisions

in United States v. Clary, 34 F.3d 709 (8th Cir. 1994), cert.

denied, 115 S. Ct. 1172 (1995), and United States v. Buckner, 894

F.2d 975 (8th Cir. 1990), but only the court en banc can overturn

the decision of another panel of the 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). We have consistently rejected

the claim that any disparate impact occasioned by the distinction

between the penalties for crack and powder cocaine violates the
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Equal Protection Clause, see, e.g., United States v. Delaney, 52

F.3d 182, 189 (8th Cir.), cert. denied, 116 S. Ct. 209 (1995); and

we recently refused to reconsider Clary, United States v. Thompson,

51 F.3d 122, 127 (8th Cir. 1995).

Finally, Rimson's argument that no scientific difference

exists between crack and cocaine powder, and that the penalty

provisions set forth in section 841(b) are thus void for vagueness

or rendered inapplicable by operation of the rule of lenity is

foreclosed by our recent decision in United States v. Jackson, 64

F.3d 1213, 1219-20 (8th Cir. 1995).

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

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