___________ No. 96-1790

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Edward James Clary, * [UNPUBLISHED] * Appellant. *

___________ Submitted: September 6, 1996 Filed: September 16, 1996

________

___ Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.
Edward James Clary pleaded guilty to possessing cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) an d (b)(1)(A), which carries a 120-month mandatory-minimum sentence
. Initially, the district court held that the penalties for cocaine base wer e unconstitutional and sentenced him to four years imprisonment. We reverse d and remanded for resentencing, holding that the penalty scheme set forth in section 841(b)--wh ich provides the same penalties for given amounts of
crac k and 100 times greater amounts of powder cocaine ("the 100-to- 1 rat io")--did not violate the Equal Protection Clause. United States v
. Clary , 34 F.3d 709, 7 13-14 (8th Cir. 1994), cert. denied , 115 S. Ct. 1172 (1995). On re mand, as relevant here, Clary challenged the validity of th e 100-to-1 ratio, arguing (1) that as no scientific difference

### The Honorable Jean C. Hamilton, Chief Judge, United States 1 

### District Court for the Eastern District of Missouri. -2- existed between crack and cocaine powder, the pe nalty provisions set forth in section 841(b) were rendered inapplicable by operation of the rule of lenity; and (2) that Congress's recent rejectionof a Guidelines amendment pro posed by the Sentencing Commission--eliminating the 100-to- 1 rati o--manifested a discriminatory purpose on Congress's part, so tha t continued applicationof the penalty scheme violated his equal protection rights. Clary also maintained he was entitled to a three-leve l acceptance-of-responsibility reduction, under U.S.S.G. § 3E1.1, and to a sentence within the Guidelines range without regard to th e mand atory-minimum sentence, under U.S.S.G. § 5C1.2 (the "safety valve " provision).

The district court reje cted Clary's challenges to the 100-to-ratio; 1 imp osed an obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 ; denie d an acceptance-of-responsibility reduction because Clary had use d cocaine wh ile on pretrial supervision and had failed to appear at hi s original sentencing and his resentencing; and de nied "safety valve" relief becaus e, absent a reduction for accepting responsibility, Clary' s Guidelines range exce eded the mandatory-minimum sentence and thus section 5C 1.2 was inapplicable. The court sentenced Clary to 151 month s imprisonment, and he appeals.

We conclude Clary's equal protection and rule-of-lenity argument s regarding the 100-to-1 ratio are foreclosed by this circuit's precedent. See Unite d States v. Carter , No. 96-1329, 1996 WL 453275, at *2-*3 (8t h Cir. Au g. 13, 1996) (per curiam) (equal protection); United States v
. Crawford , 83 F.3d 964, 965-66 (8th Cir. 1996) (rule of lenity), petition for cert. filed , (U.S. Aug. 9, 1996) (No. 96-5557).

### -3- We next conclude the district court did not clearly err in denyin g Clary an acceptance-of-responsibility reduction, as he did not show h e "clearly demonstrate[d] a recognition and affirmative acceptance o f person al responsibility for his criminal conduct." See U.S.S.G
. § 3E1.1(a); United States v. Thomas , 72 F.3d 92, 93 (8th Cir. 1995) (per
cur iam) (standard of review). We note Clary does not dispute he use d cocaine while on pretrial supervision. See Thomas , 72 F.3d at 93. Clary' s volunt ary admission of the conduct comprising his offense of convictio n does not automatically entitle him to the reduct ion. See United States v. Hawkins , 78 F.3d 348, 352 (8th Cir. 1996), petit ion for cert. filed , (U.S. June 1 , 1996) (No. 95-9212). Further, conduct resulting in a n obstruction-of-justice enhancement "ordinarily indicates that the defendan t has n ot accepted responsibility for his criminal conduct," U.S.S.G
. § 3E1.1, comment. (n. 4), and Clary has not shown this is an extraordinary
case in which both adjustments apply. See United States v. Anderson , 68 F.3d 105 0, 1056 (8th Cir. 1995). Because Clary's Guidelines rang e the refore exceeded the mandatory-minimum sentence, the district cour t prope rly concluded section 5C1.2 did not apply. See U.S.S.G. § 5C1.2 ; Unite d States v. Goodwin , 72 F.3d 88, 90 (8th Cir. 1995) (safety-valv e provision provides re lief when mandatory-minimum sentence is greater than applicable guideline sentence).
Finally, we need not address the arguments Clary raises for the first time on appeal, concerning double jeopardy, due process, and sufficiency of the evidence. See Goodwin , 72 F.3d at 91.
Accordingly, the judgment of the district court is affirmed.

### -4- A true copy.

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