United States of America, Plaintiff-appellee, v. Sylvester Hutchinson, Defendant-appellant, 9 F.3d 118 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

Before ANDERSON, ENGEL²  and KELLY, Circuit

Defendant-Appellant Sylvester Hutchinson appeals from his sentence of conviction for various drug-related offenses, 21 U.S.C. 841(a) (1), 843(b), 846, contending that (1) the 100 to 1 disparity between cocaine and cocaine base (crack) for sentencing purposes violates his right to equal protection under the Fifth Amendment, (2) his sentence of life imprisonment without parole is cruel and unusual in derogation of the Eighth Amendment, and (3) the racially disparate impact of the pertinent Guideline provision justifies a downward departure. Our jurisdiction arises under 28 U.S.C. 1291 and 18 U.S.C. 3742 and we affirm.

We have held that the Sentencing Guidelines comport with equal protection principles embodied in the Fifth Amendment in a similar challenge. See United States v. Thurmond, 1993 WL 410034 at * 3-* 6 (10th Cir. 1993). Accordingly, this argument is foreclosed.

Likewise, Mr. Hutchinson's argument that a mandatory sentence of life imprisonment without parole constitutes a violation of the Eight Amendment's proscription against cruel and unusual punishment has been rejected by this court. See United States v. Angulo-Lopez, 1993 WL 429776 at * 2 (10th Cir. 1993) (citing Harmelin v. Michigan, 111 S. Ct. 2680 (1991) and Solem v. Helm, 463 U.S. 277, 290-92 (1983)).

Finally, Mr. Hutchinson wishes us to remand to the district court for findings whether the disparate impact of the Guidelines would allow a judge to depart downward. Because Mr. Hutchinson did not request such a downward departure from the district court, we decline to review such an argument made for the first time on appeal. See United States v. Mendoza-Lopez, 1993 WL 429779 at * 4 fn.3 (10th Cir. 1993) (citation omitted); United States v. Howard, 998 F.2d 42, 50 (2d Cir. 1993) (citations omitted).

AFFIRMED.