Filed: Apr. 24, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 95-2705 _ United States of America, * * Appellee, * * v. * * Elizabeth A. Scallion, * also known as Elizabeth * Woods, Elizabeth A. Collins, * and Elizabeth S. Collins, * * Appellants. * _ Appeals from the United States District Court for the No. 95-2914 Western District of Missouri. _ United States of America, * [UNPUBLISHED] * Appellee, * * v. * * Tyrone Lamont Woods, * * Appellant. * _ No. 95-3077 _ United States of America, * * Appellee, * * v. * * Ira M. Collins, Jr., also * known as
Summary: _ No. 95-2705 _ United States of America, * * Appellee, * * v. * * Elizabeth A. Scallion, * also known as Elizabeth * Woods, Elizabeth A. Collins, * and Elizabeth S. Collins, * * Appellants. * _ Appeals from the United States District Court for the No. 95-2914 Western District of Missouri. _ United States of America, * [UNPUBLISHED] * Appellee, * * v. * * Tyrone Lamont Woods, * * Appellant. * _ No. 95-3077 _ United States of America, * * Appellee, * * v. * * Ira M. Collins, Jr., also * known as I..
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___________
No. 95-2705
___________
United States of America, *
*
Appellee, *
*
v. *
*
Elizabeth A. Scallion, *
also known as Elizabeth *
Woods, Elizabeth A. Collins, *
and Elizabeth S. Collins, *
*
Appellants. *
___________ Appeals from the United States
District Court for the
No. 95-2914 Western District of Missouri.
___________
United States of America, * [UNPUBLISHED]
*
Appellee, *
*
v. *
*
Tyrone Lamont Woods, *
*
Appellant. *
___________
No. 95-3077
___________
United States of America, *
*
Appellee, *
*
v. *
*
Ira M. Collins, Jr., also *
known as Ira G. Collins, *
*
Appellants. *
___________
Submitted: April 22, 1996
Filed: April 24, 1996
___________
Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Elizabeth A. Scallion, Tyrone Lamont Woods, and Ira M. Collins, Jr.
(defendants), were charged with conspiring over a five-year period to
distribute and to possess with intent to distribute cocaine powder and
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.
In March 1995, Scallion and Woods pleaded guilty pursuant to written plea
agreements; in April 1995, a jury found Collins guilty of the charge.
Defendants appeal, and we affirm, addressing each defendant's arguments in
turn.
SCALLION
Prior to her June 1995 sentencing hearing, the district court1 denied
Scallion's motion to continue sentencing until November, by which time
Congress was to act on a proposed Guidelines amendment equalizing the
penalties for cocaine powder and cocaine base. At sentencing, the district
court granted the government's substantial-assistance downward-departure
motion under U.S.S.G. § 5K1.1, p.s., and 18 U.S.C. § 3553(e), and sentenced
Scallion to 108 months imprisonment and five years supervised release. On
appeal, Scallion argues the district court erred in denying her a
continuance, and violated her equal protection rights by not sentencing her
in accordance with the proposed Guidelines
1
The Honorable Elmo B. Hunter, United States District Judge
for the Western District of Missouri.
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amendment.
We reject these arguments. First, because Scallion was merely
speculating that Congress would adopt the proposed amendment, the district
court did not abuse its discretion in denying Scallion's continuance
motion. See United States v. Ulrich, 953 F.2d 1082, 1085 (8th Cir. 1991)
(standard of review). Moreover, Scallion was not prejudiced by the denial
of the motion, see
id., because Congress rejected the proposed amendment,
see Federal Sentencing Guidelines, Pub. L. No. 104-38, 109 Stat. 334
(1995). Second, the district court did not err by failing to sentence
Scallion under a proposed but unadopted Guidelines amendment.
WOODS
Before Woods's July sentencing hearing, the government filed a
substantial-assistance downward-departure motion under section 5K1.1. At
sentencing, Woods asserted that he was entitled to departure below the
statutory minimum. The district court2 rejected Woods's assertion, granted
the government's motion, and sentenced Woods to 120 months imprisonment and
five years supervised release.
Section 841(b)(1)(A) sets a ten-year (120-month) mandatory minimum
sentence for a defendant convicted under section 841(a)(1) of distributing
or possessing with intent to distribute at least 5 kilograms of cocaine or
50 grams of cocaine base. Woods was subject to that mandatory minimum.
Absent a section 3553(e) motion by the government, a district court cannot
sentence a defendant below a mandatory statutory minimum. At sentencing,
Woods failed to make a substantial threshold showing--and did not even
allege--that the government withheld such a motion in bad faith or based
on
2
The Honorable Elmo B. Hunter, United States District Judge
for the Western District of Missouri.
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an unconstitutional motive. See United States v. Kelly, 18 F.3d 612, 617-
18 (8th Cir. 1994). Thus, Woods's sentence is unreviewable. See United
States v. Baker,
64 F.3d 439, 441 (8th Cir. 1995) (sentence unreviewable
where sentencing court departed from applicable Guidelines range to
statutory mandatory minimum sentence pursuant to § 5K1.1).
Woods also argues he was denied his Sixth Amendment right to counsel
because the district court reduced his appointed counsel's fee under the
Criminal Justice Act, 18 U.S.C. § 3006A; counsel argues the reduction
denied him reasonable compensation. These arguments are meritless. See
United States v. Jones, 801 F.2d 304, 315 (8th Cir. 1986).
COLLINS
Before his August 1995 sentencing hearing, Collins made no objections
to the recommendations set forth in his presentence report (PSR). At
sentencing, Collins failed to state the specific grounds for his
objections, beyond asserting his innocence; he argued only that he was
entitled to downward departures under U.S.S.G. §§ 5K2.11, p.s. (lesser
harms), and 5K2.12, p.s. (coercion and duress), and that the court should
consider the disparity between penalties for cocaine powder and cocaine
base and sentence Collins under the proposed Guidelines amendment
3
equalizing those penalties. The district court denied Collins's
sentencing requests, adopted the PSR, and sentenced Collins to 324 months
imprisonment and five years supervised release.
On appeal, Collins first argues the district court erred in
calculating the quantity of drugs used to determine his base offense level.
Because Collins did not preserve this issue for
3
The Honorable Fernando J. Gaitan, Jr., United States District
Judge for the Western District of Missouri.
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appeal, and we see no gross miscarriage of justice, we do not address the
issue. See United States v. Williams, 994 F.2d 1287, 1294 (8th Cir. 1993).
Collins further argues the district court erred in denying him a
downward departure under section 5K2.12. As the record shows that the
court knew it had authority to grant such a departure, we conclude the
court's exercise of discretion is unreviewable. See United States v.
Trupiano, 11 F.3d 769, 776 (8th Cir. 1993). Collins's equal protection and
Eighth Amendment challenges to the disparity between penalties for cocaine
powder and cocaine base are foreclosed by United States v. Thompson,
51
F.3d 122, 127 (8th Cir. 1995), and the district court did not err in not
sentencing him under the proposed but unadopted Guidelines amendment.
Collins also argues--for the first time on appeal--that he was
entitled to a two-level reduction under U.S.S.G. § 3B1.2(b) for being a
minor participant, and a downward departure under U.S.S.G. § 5H1.4, p.s.
(physical condition). In the absence of a gross miscarriage of justice,
we will not consider these issues. See Williams, 994 F.2d at 1294.
The judgments are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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