Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.united States of America, Appellee, v. Osker Mcneal, Appellant, 33 F.3d 57 (8th Cir. 1994)

Osker McNeal appeals his 211-month sentence imposed by the district court¹  after he pleaded guilty to possessing with intent to distribute crack cocaine and using a firearm in relation to a drug trafficking crime, in violation of 21 U.S.C. § 841(a) (1) and (b) (1) (A) (iii) and 18 U.S.C. § 924(c) (1). We affirm.

On appeal, McNeal argues the district court erred in not conducting a hearing regarding the nature and extent of his cooperation to determine whether a downward departure was warranted and that a U.S.S.G. Sec. 5K1.1 government motion was not necessary to depart downward. He also challenges the constitutionality of the 100-to-1 ratio between crack cocaine and cocaine penalties.

McNeal's claims are meritless. It is now well settled that a "court is without authority to grant a downward departure for substantial assistance absent a government motion." United States v. Kelly, 18 F.3d 612, 617 (8th Cir. 1994). We have recently reaffirmed that the 100-to-1 ratio between cocaine and crack cocaine does not deny equal protection of the law. United States v. Maxwell, Nos. 93-2990/2992/3053/3057/3183, slip op. at 12-13, 20-22 (8th Cir. May 26, 1994).

Accordingly, the judgment is affirmed.