United States of America, Plaintiff-appellee, v. Anthony M. Mason, Defendant-appellant, 5 F.3d 542 (9th Cir. 1993)

MEMORANDUM^** 

Anthony M. Mason appeals his eighty-four-month sentence imposed after a guilty plea to knowingly distributing cocaine base in violation of 21 U.S.C. § 841(a) (1). For the first time on appeal, Mason contends (1) the Guidelines differentiation between "crack cocaine" and "powder cocaine" violates the Equal Protection Clause and (2) the statutory definition of "cocaine base" in section 841 is unconstitutionally vague. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Because the issues are purely of law and the government will suffer no prejudice, we may review Mason's contentions raised for the first time on appeal. See United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991).

As Mason concedes, we previously have considered and squarely rejected both his contentions. See United States v. Harding, 971 F.2d 410, 414 (9th Cir. 1992) (Guidelines distinction between crack cocaine and powder cocaine does not violate Equal Protection Clause), cert. denied, 113 S. Ct. 1025 (1993); United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir. 1990) (statutory definition of "cocaine base" in section 841 is not unconstitutionally vague). Mason, however, urges the panel to reconsider Harding and Van Hawkins. We note that "a panel not sitting en banc has no authority to overturn Ninth Circuit precedent." United States v. Aguilar, 883 F.2d 662, 690 n. 25 (9th Cir. 1989), cert. denied, 498 U.S. 1046 (1991).

AFFIRMED.