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No. 96-1790

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United States of America, *

 *

Appellee, * Appeal from the United States

 * District Court for the

v. * Eastern District of Missouri.

 *

Edward James Clary, * [UNPUBLISHED]

 *

Appellant. *

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 Submitted: September 6, 1996

 Filed: September 16, 1996

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

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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) and

(b)(1)(A), which carries a 120-month mandatory-minimum sentence.

Initially, the district court held that the penalties for cocaine base were

unconstitutional and sentenced him to four years imprisonment. We reversed

and remanded for resentencing, holding that the penalty scheme set forth

in section 841(b)--which provides the same penalties for given amounts of

crack and 100 times greater amounts of powder cocaine ("the 100-to-1

ratio")--did not violate the Equal Protection Clause. United States v.

Clary, 34 F.3d 709, 713-14 (8th Cir. 1994), cert. denied, 115 S. Ct. 1172

(1995).

On remand, as relevant here, Clary challenged the validity of the

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.

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existed between crack and cocaine powder, the penalty provisions set forth

in section 841(b) were rendered inapplicable by operation of the rule of

lenity; and (2) that Congress's recent rejection of a Guidelines amendment

proposed by the Sentencing Commission--eliminating the 100-to-1

ratio--manifested a discriminatory purpose on Congress's part, so that

continued application of the penalty scheme violated his equal protection

rights. Clary also maintained he was entitled to a three-level

acceptance-of-responsibility reduction, under U.S.S.G. § 3E1.1, and to a

sentence within the Guidelines range without regard to the

mandatory-minimum sentence, under U.S.S.G. § 5C1.2 (the "safety valve"

provision).

The district court rejected Clary's challenges to the 100-to-ratio; 1

imposed an obstruction-of-justice enhancement under U.S.S.G. § 3C1.1;

denied an acceptance-of-responsibility reduction because Clary had used

cocaine while on pretrial supervision and had failed to appear at his

original sentencing and his resentencing; and denied "safety valve" relief

because, absent a reduction for accepting responsibility, Clary's

Guidelines range exceeded the mandatory-minimum sentence and thus section

5C1.2 was inapplicable. The court sentenced Clary to 151 months

imprisonment, and he appeals.

We conclude Clary's equal protection and rule-of-lenity arguments

regarding the 100-to-1 ratio are foreclosed by this circuit's precedent.

See United States v. Carter, No. 96-1329, 1996 WL 453275, at *2-*3 (8th

Cir. Aug. 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).
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We next conclude the district court did not clearly err in denying

Clary an acceptance-of-responsibility reduction, as he did not show he

"clearly demonstrate[d] a recognition and affirmative acceptance of

personal 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

curiam) (standard of review). We note Clary does not dispute he used

cocaine while on pretrial supervision. See Thomas, 72 F.3d at 93. Clary's

voluntary admission of the conduct comprising his offense of conviction

does not automatically entitle him to the reduction. See United States v.

Hawkins, 78 F.3d 348, 352 (8th Cir. 1996), petition for cert. filed, (U.S.

June 1, 1996) (No. 95-9212). Further, conduct resulting in an

obstruction-of-justice enhancement "ordinarily indicates that the defendant

has not 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 1050, 1056 (8th Cir. 1995). Because Clary's Guidelines range

therefore exceeded the mandatory-minimum sentence, the district court

properly concluded section 5C1.2 did not apply. See U.S.S.G. § 5C1.2;

United States v. Goodwin, 72 F.3d 88, 90 (8th Cir. 1995) (safety-valve

provision provides relief 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.
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A true copy.

Attest:

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