PUBLISH

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT

                                  ________________________

                                         No. 97-3576
                                                                               FILED
                                    Non-Argument Calendar              U.S. COURT OF APPEALS
                                  ________________________               ELEVENTH CIRCUIT
                                                                              09/10/98
                                D. C. Docket No. 5:97-CR-2-LAC            THOMAS K. KAHN
                                                                               CLERK
UNITED STATES OF AMERICA,
                                                                                 Plaintiff-Appellee,

                                               versus

MARLON D. HANNA, a.k.a. Pearl,
                                                                              Defendant-Appellant.

                                  ________________________

                           Appeal from the United States District Court
                               for the Northern District of Florida
                                 _________________________
                                      (September 10, 1998)

Before TJOFLAT and EDMONDSON, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

       Marlon Hanna pled guilty to one count of conspiring to possess with intent to distribute

cocaine base, better known as “crack cocaine,” in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(iii). In accordance with United States Sentencing Commission Guideline § 2D1.1(c)(1),

the district court sentenced Hanna to serve 330 months in prison. Hanna filed this appeal

challenging the constitutionality of his sentence.

       Hanna raises two arguments against the constitutionality of his 330 month sentence. First,

he argues that his substantive due process rights were violated when the district court sentenced him

using the guideline applicable to crack cocaine because the resulting sentence was both excessive

and disproportionate to his crime. Second, Hanna argues that the application of the crack cocaine
sentencing guideline denied him his right to equal protection because the consequence of that

guideline – 100 times longer sentences for crack cocaine offenses than for powder cocaine offenses

– falls disproportionately upon black offenders.

       We have had occasion to hear and reject constitutional challenges to the crack cocaine

guideline in the past. See, e.g., United States v. Butler, 

, 1194-95 (11th Cir.), cert.

denied, 

(1997); United States v. Sloan, 

, 1383-84 (11th Cir. 1996), cert.

denied, 

(1997); United States v. Terry, 

, 1544-45 (11th Cir. 1995), cert.

denied, 

(1996). In this circuit, only the court of appeals sitting en banc, an overriding

United States Supreme Court decision, or a change in the statutory law can overrule a previous panel

decision. See United States v. Woodard, 

, 1258 (11th Cir. 1991); Davis v. Estelle, 

, 441 (5th Cir. 1976).

       Due Process Argument

       Hanna contends that we should revisit our decisions upholding the constitutionality of the

crack cocaine guideline in light of the Supreme Court’s decision in BMW of North America v. Gore,

(1996). There, the Court reversed an award of punitive damages in a civil action

because the award, $4 million, was so excessive as to violate substantive due process. Hanna argues

that the Gore decision sheds new light on the nature of substantive due process and may have

applicability in his case. We, however, continue to be bound by our precedent as Gore’s holding

does not overrule (or even relate to) our decisions on the crack cocaine guideline.

       Equal Protection Argument

       Hanna argues we should revisit our precedent upholding the crack cocaine guideline because

new findings made by the Sentencing Commission and communicated to Congress reveal that no

rational basis supports the sentence differential between crack and powder cocaine offenses. In our

previous cases, we have held that imposing longer sentences on crack cocaine offenders is rationally

related to the legitimate purpose of distinguishing between distinguishable drugs. See Terry, 

(“Congress distinguished between the kinds of cocaine, not to discriminate against

people, but because crack cocaine is more dangerous, more highly addictive, more easily available,

and less expensive than powder cocaine.”). Hanna argues that the recent dialogue between Congress

and the Sentencing Commission on repealing the crack/powder disparity is evidence of the absence

of a rational basis for the disparity.1 Similar arguments have been rejected in several of our sister

circuit courts of appeal. See United States v. Washington, 

(6th Cir. 1997), cert.

denied, 

(1998); United States v. Burgos, 

(4th Cir. 1996) (en banc), cert.

denied, 

(1997); United States v. Teague, 

(2d Cir. 1996), cert. denied, 

(1997); United States v. Carter, 

(8th Cir. 1996); United States v. Jackson,

(9th Cir.), cert. denied, 

(1996).

       The Sentencing Commission is required to review and revise guidelines previously

promulgated and to submit amendments to Congress before the first of May each year. 28 U.S.C.

§ 994(o), (p). These amendments become effective by operation of law unless Congress passes a

law specifically disapproving of the amendment. 28 U.S.C. § 994(p). In May 1995, the Sentencing

Commission promulgated a series of amendments to Congress including one that would have

eliminated altogether the sentencing disparity between crack and powder cocaine. After conducting

a study at the direction of Congress, see Violent Crime Control and Law Enforcement Act of 1994,

Pub. L. No. 103-322, § 280006, 108 Stat. 1796, 2097, the Commission voted 4-3 to remove any

difference between cocaine base and cocaine powder, concluding that “sufficient policy bases for

the current penalty differential do not exist.” Notice of Submission to Congress of Amendments to

the Sentencing Guidelines, 60 Fed. Reg. 25,074, 25,076 (amendments proposed on May 1, 1985).


       1
        Hanna also argues we should apply a “strict scrutiny” standard of review. We see no
evidence in the dialogue between the Commission and Congress that Congress’s rejection of the
Commission’s proposed amendment was motivated by racial animus. Accordingly, we review
the crack cocaine sentencing guideline to determine whether it is rationally related to a
legitimate governmental purpose. See United States v. Byse, 

, 1168 (11th Cir.
1994).

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Specifically, the Commission determined that many of the harms associated with crack cocaine

(such as the correlation with violence, incidence of repeat offenders, etc.) were already captured by

other guideline sentencing enhancements. 

further observed in its notice to

Congress that the higher addiction rate of users of crack cocaine was attributable to the delivery

method – smoking – not to the nature of the substance. 

        The amendment would have taken effect on November 1, 1995, but on October 30, 1995,

Congress rejected the amendment in an act presented to both houses and signed by President

Clinton. See Federal Sentencing Guidelines, Amendment, Disapproval, Pub. L. 104-38, 109 Stat.

334 (1985). In that same act, Congress mandated further study and revision of the crack cocaine

guideline, but specifically stated that “the sentence imposed for trafficking in a quantity of crack

cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder

cocaine.” 

that the Sentencing Commission’s conclusion “sufficient policy bases for the

current penalty differential do not exist” is, in effect, an agency’s interpretation of its own rules and

is entitled to “controlling weight.” Stinson v. United States, 

, 45 (1993); see also

(dissenting opinion). In Stinson, the Supreme Court held that

commentary to the Sentencing Guidelines that functions “to interpret a guideline or explain how it

is to be applied” is binding on courts applying the Guidelines. 

. The

Court analogized the Commission’s commentary to an agency’s interpretation of its own legislative

rule. An agency’s interpretation of a legislative rule must be given “‘controlling weight unless it

is plainly erroneous or inconsistent with the regulation.’” 

(quoting Bowles v. Seminole

Rock & Sand Co., 

, 414 (1945)).

        Hanna uses the Stinson holding to argue that the Commission’s “interpretation” of its

guideline – that the guideline is not supported by sound policy – requires this court to find the

guideline irrational and unconstitutional. But even if we concluded that the Commission’s

                                                   4
explanation of the proposed amendment constituted an agency’s interpretation of a rule (a doubtful

proposition), nothing would require Congress to accept that interpretation.            Congress can,

constitutionally, “veto” an agency’s interpretation of a legislative rule as long as the Article I, § 7

requirements are met. See INS v. Chadha, 

, 944-51 (1983). Here, Congress clearly did

not accept the Commission’s conclusions concerning the sentence differential and disapproved of

the Commission’s proposed amendment in legislation that passed both houses and was signed by

the president. Therefore, we need not give the Commission’s conclusions about the sentence

differential any interpretive weight and, instead, must adhere to this Circuit’s precedent. See United

States v. King, 

, 1260 (11th Cir. 1992) (sentencing scheme for crack cocaine passes

rational basis test).

        AFFIRMED.




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