United States of America, Plaintiff-appellee, v. Stanley Lavell Levi, Defendant-appellant, 83 F.3d 434 (10th Cir. 1996)

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant-appellant Stanley Lavell Levi appeals from his sentence of conviction for distribution of cocaine base, 21 U.S.C. 841(a) (1), contending that (1) the disparity in sentencing between cocaine base and cocaine powder violates his equal protection rights under the Fifth Amendment, and (2) the district court erred in refusing a downward departure under U.S.S.G. 5K2.0 for substantial assistance even in the absence of a government motion under section 5K1.1. We exercise jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742 and affirm.

We have repeatedly held that the disparity in sentencing between cocaine base and cocaine powder does not violate the Equal Protection Clause. United States v. Williamson, 53 F.3d 1500, 1530 (10th Cir.), cert. denied, 116 S. Ct. 218 (1995); United States v. Williams, 45 F.3d 1481, 1485-86 (10th Cir. 1995); United States v. Angulo-Lopez, 7 F.3d 1506, 1508-09 (10th Cir. 1993), cert. denied, 114 S. Ct. 1563 (1994); United States v. Thurmond, 7 F.3d 947, 950-53 (10th Cir. 1993), cert. denied, 114 S. Ct. 1311 (1994); United States v. Easter, 981 F.2d 1549, 1558-59 (10th Cir. 1992), cert. denied, 113 S. Ct. 2448 (1993). Therefore, Levi's equal protection argument, which raises nothing new, is foreclosed.

Likewise, we have previously held that the district court may not grant a downward departure for substantial assistance in the absence of a motion by the government. Easter, 981 F.2d at 1555; United States v. Horn, 946 F.2d 738, 745 (10th Cir. 1991). The requirement of a motion "is reasonable and does not offend due process." Horn, 946 F.2d at 746. Levi would have the district court use its discretionary power under U.S.S.G. 5K2.0 to effect a downward departure that would be permissible under section 5K1.1 only upon motion by the government. In the absence of a government motion, the district court properly refused to grant a downward departure for substantial assistance.

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.