IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10787 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERAY DAVIS, also known as Pleasure Wilson,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-7-1-A -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Deray Davis, a/k/a Pleasure Wilson, appeals his sentence

after pleading guilty to possession with intent to distribute

cocaine base. He raises a single issue, whether the sentencing

guideline applicable to crack cocaine, U.S.S.G. § 2D1.1(c), is

unconstitutional in that it violates the Due Process Clause, the

Equal Protection Clause, and the Eighth Amendment’s prohibition

against cruel and unusual punishment. He contends that this

guideline is unconstitutional due to its disparate treatment of

defendants who possess crack cocaine versus powder cocaine. He

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-10787 -2-

acknowledges that this court has previously rejected this

argument and raises the issue for the purpose of preserving it

for further appeal. See United States v. Wilson,

(5th Cir. 1997) (“This court has previously rejected equal

protection, Eighth Amendment, and due process challenges to the

disparate sentencing provisions for cocaine base contained in the

sentencing guidelines.”).

The Government has filed a motion to forego the filing of a

formal appellate brief, due to the fact that Davis raises this

single issue foreclosed by circuit precedent.

The Government’s motion is GRANTED, and Davis’ sentence is

AFFIRMED.