United States v. Oscar L. Coleman, AKA Pancho

Opinion by Judge RYMER.

Oscar Lidell Coleman appeals his sentence on one count of possession of cocaine base with intent to distribute, to which he entered a conditional plea of guilty. He contends that the difference between statutory and Guidelines sentences for crack and powder cocaine is unconstitutional. We separately affirm his conviction in a memorandum disposition, and now affirm his sentence.

Coleman’s base offense level for possession of 252.23 grams of crack (plus 2 kilograms of powder cocaine from two other transactions which were considered relevant conduct) was calculated at 34. He was sentenced to 210 months imprisonment, followed by a term of 5 years of supervised release.

He argues that U.S.S.G. § 2D1.1 and 21 U.S.C. § 841 (b), both of which provide for higher sentences for defendants convicted of offenses involving cocaine base (crack) than for defendants convicted of crimes involving cocaine hydrochloride (powder cocaine), violate the Equal Protection Clause. Coleman attempts to distinguish United States v. Harding, 971 F.2d 410, 414 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1025 , 122 L.Ed.2d 170 (1993), in which we held that the distinction between…