Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes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. Tyrone Caine, Appellant, 39 F.3d 1185 (8th Cir. 1994)

Tyrone Caine appeals his 120-month sentence imposed by the district court¹  after he pleaded guilty to possessing with intent to distribute over five grams of crack cocaine, in violation of 21 U.S.C. § 841(a) (1) and (b) (1) (A) (iii).

For reversal, Caine argues (as he did below) that the 100-to-1 ratio between powdered and crack cocaine penalties violates the Equal Protection Clause. We have recently reaffirmed our prior holding that the 100-to-1 ratio does not deny equal protection of the law because there is no evidence that either Congress or the Sentencing Commission had a racially discriminatory purpose in enacting the ratio or allowing it to remain in effect. United States v. Clary, No. 94-1422, slip op. at 4-10 (8th Cir. Sept. 12, 1994) (rejecting theory that Congress was motivated by unconscious racism); United States v. Maxwell, 25 F.3d 1389, 1396-97, 1401 (8th Cir. 1994).

Accordingly, the judgment is affirmed.