United States of America, Plaintiff-appellee, v. Cynthia Ann Jessie, Defendant-appellant, 35 F.3d 572 (9th Cir. 1994)

MEMORANDUM^** 

Cynthia Ann Jessie appeals the 60-month mandatory minimum sentence required by 21 U.S.C. § 841(b) (1) (B) (iii) for her distribution of 5 grams or more of cocaine base. Jessie argues that her sentence violates: (1) the Eighth Amendment's prohibition against cruel and unusual punishment because the sentence is unconstitutionally disproportionate to the offense; and (2) the Fifth Amendment Due Process Clause because the district court could not consider her individual circumstances as a basis for downward departure. We affirm.

We have repeatedly considered and rejected numerous Eighth and Fifth Amendment challenges to the mandatory minimum sentences provided by section 841. See United States v. Oakes, 11 F.3d 897, 899-90 (9th Cir. 1993) (citing cases rejecting Eighth Amendment challenge), cert. denied, 114 S. Ct. 1569 (1994); United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991) (per curiam) (citing cases rejecting Fifth and Eighth Amendment challenges). Jessie urges this panel to revisit the prior decisions of this court. We reject this invitation, however, because a three-judge panel lacks the authority to overrule Ninth Circuit precedent. See United States v. Lucas, 963 F.2d 243, 247 (9th Cir. 1992).

AFFIRMED.