PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4822

SHENITA BANKS,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4836

SHENITA BANKS,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CR-95-64)

Argued: October 1, 1997

Decided: December 2, 1997

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

MAGILL, Senior Circuit Judge of the United States Court of

Appeals for the Eighth Circuit, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opinion. Senior Judge Magill wrote the opinion, in which Judge Murnaghan and Judge Niemeyer joined.

_________________________________________________________________
COUNSEL

ARGUED: William Graham Otis, Senior Litigation Counsel,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. David Preston Baugh, Richmond, Virginia, for

Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant.

_________________________________________________________________

OPINION

MAGILL, Senior Circuit Judge:

Shenita Banks was convicted in the United States District Court for

the Eastern District of Virginia of conspiring to distribute in excess

of fifty grams of crack cocaine, in violation of 21 U.S.C. § 846

(1994). Although the United States Sentencing Guidelines called for

a sentencing range of 292 to 365 months imprisonment for Banks's

crime, the district court sentenced Banks to only 133 months imprisonment. The district court departed downward solely because the Sentencing Guidelines treated crimes involving crack cocaine more

harshly than crimes involving like amounts of cocaine powder. The

government now appeals the district court's downward departure. We

reverse.

I.

Albert Betemit, Banks's co-defendant who is pursuing a separate

appeal, was the leader of a cocaine distribution network. From 1987

until 1993, Betemit and his group peddled cocaine in a variety of

communities in Virginia, including Norfolk, Newport News, Hampton, and Richmond, and also sold cocaine in Columbia, South Carolina. To obtain the drugs, the group would take guns to New York

City and trade the firearms for cocaine. While Betemit and his group

initially dealt only in cocaine powder, by 1991 the group dealt exclusively with crack cocaine.

Shenita Banks, who dated Betemit, became involved in the conspiracy in October 1991. In addition to traveling to New York some

 2
ten to fifteen times to obtain cocaine, Banks also stored guns and

large sums of money for Betemit at her Newport News apartment.

Banks made deliveries of large amounts of cash to Betemit, and, on

at least two occasions, possessed a handgun in her car.

The drug dealing enterprise began to unravel in March 1992, when

several co-conspirators were found in possession of large amounts of

cocaine. Shortly after the co-conspirators were arrested, Betemit

ordered Banks and another co-conspirator to remove all evidence of

illegal activity from Banks's apartment. Banks complied with this

order, and removed what she suspected was cocaine residue from her

kitchen counters.

Banks was indicted on August 1, 1995, on one count of conspiring

to distribute crack cocaine, in violation of 21 U.S.C. § 846, and on

two counts of using and carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), (2) (1994). Banks

pled not guilty to the charges. Following a jury trial, Banks was convicted on November 20, 1995, on one count of conspiring to distribute crack cocaine and on one count of possessing a firearm in relation

to a drug trafficking crime. On February 7, 1996, the district court

dismissed Banks's conviction for possession of a firearm. Banks's

sentence was based only on her conviction for conspiring to distribute

crack cocaine.

For sentencing purposes, Banks was found to have been involved

with at least 1.5 kilograms of crack cocaine. This quantity resulted in

an offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (1995) (drug quantity table). In addition, Banks was assessed a two-point enhancement

for possessing a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1)

(1995). With a total offense level of 40 and a criminal history category of I, the Sentencing Guidelines provided a range for sentencing

of 292 to 365 months imprisonment.

At sentencing, the district court addressed Banks and stated that

the record here is clear that your involvement was far from

just an innocent and accidental involvement. And accordingly, the fact is that you were involved in the transporting

of a great quantity of narcotics. You were involved in han-

 3
dling a good bit of money. You were involved in storing

guns and had guns in your car.

Sent. Tr. at 256-57, reprinted in J.A. at 402-03. Despite these findings, however, the district court departed downward from the Sentencing Guidelines' range, and imposed a sentence of 133 months,

with 13 months credit for presentencing confinement.

In departing downward in its sentencing, the district court noted the

disparity in the Sentencing Guidelines in the treatment of crack

cocaine offenses and cocaine powder offenses, see U.S.S.G.

§ 2D1.1(c)(1) (1.5 kilograms of cocaine base results in same base

offense level as 150 kilograms of powder cocaine), the Sentencing

Commission's recent efforts to change that disparity in treatment, see

United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy xiv (1995) (describing

Commission's findings); 60 Fed. Reg. 25,074, 25,075-76 (May 10,

1995) (proposed amendments to Sentencing Guidelines), and Congress's rejection of those efforts. See Pub. L. No. 104-38, 109 Stat.

334 (1995). After distinguishing a number of cases from this Court,

the district court specifically adopted the reasoning presented by

Judge Wald in her dissent in United States v. Anderson, 82 F.3d 436,

445-50 (D.C. Cir.) (Wald, J., dissenting), cert. denied, 117 S. Ct. 375

(1996), that 18 U.S.C. § 3553(a)(2) (1994) allows a downward departure even in the absence of atypicality under U.S.S.G. § 5K2.0, comment. (1995). See Sent. Tr. at 209-10, reprinted in J.A. at 354-55

("However, I believe, and I will adopt the rule as announced by Judge

Wal[d] in her dissenting opinion, I believe, that a downward departure

is appropriate for the reasons she stated there. I could not state it any

more completely or any more effectively, and I adopt it and hereby

incorporate it by reference in this opinion . . . ."); Sent. Tr. at 250,

reprinted in J.A. at 396 ("I believe the District Court is authorized to

disregard the atypical requirement, and though it should proceed cautiously in this largely unchartered terrain, to grant a departure if it

determines that the application of crack guidelines to the case before

it will, in fact, plainly violate [28 U.S.C.§ 3553(a)(2)].").

The government now appeals the district court's downward departure in sentencing. In a cross-appeal, Banks contends that the district

court erred in holding that the Sentencing Guidelines' disparate treat-

 4
ment of crack cocaine offenders and cocaine powder offenders does

not violate the constitution. See Sent. Tr. at 182, reprinted in J.A. at

326 ("I believe that it is proper to consider the method of ingestion,

the method of use, the effects of the substance, the method of packaging, the method of distribution [of crack cocaine and cocaine powder]

in determining whether there is a [rational] basis for contending that

the discrepancy [between crack cocaine and cocaine powder] is an

arbitrary and capricious one. And I do not believe that there is a due

process violation because the record shows a basis which, although

I might as a finder of fact conclude otherwise and the Congress could,

in fact, make a distinction on that basis without it being arbitrary, and

so a due process challenge will fail.").1

II.

The government contends that the district court erred in granting

Banks a downward departure in sentencing. We agree.

We generally review the district court's sentencing departure for an

abuse of discretion. See United States v. Perkins, 108 F.3d 512, 515

(4th Cir. 1997). However, "`whether a factor is a permissible basis for

departure under any circumstances is a question of law, and the court

of appeals need not defer to the district court's resolution of the

point.'" Id. (quoting Koon v. United States, 116 S. Ct. 2035, 2047

(1996)). In conducting our review, we bear in mind that "[t]he purpose of the Sentencing Guidelines is to avoid reducing sentencing to

_________________________________________________________________

1 The government has moved to dismiss Banks's cross-appeal, see

Appellant's Reply Br. at 5-7 & n.2, on the ground that Banks seeks only

to affirm the district court's sentence on alternative grounds. We deny

this motion. If Banks had been sentenced for 1.5 kilograms of cocaine

powder, rather than crack cocaine, her base offense level would have

been 26, see U.S.S.G. § 2D1.1(c)(7) (1995), for a total offense level of

28. The Sentencing Guidelines' range for a Category I offender at

offense level 28 is 78 to 97 months, or a maximum of three years less

than the sentence Banks received from the district court. Accordingly,

the government's characterization of Banks's argument that the Sentencing Guidelines' disparate treatment of crack cocaine and cocaine powder

is unconstitutional as one of affirmance on alternative grounds is incorrect.

 5
a game of chance in which the length of the sentence is determined

by the draw of the judge." Id. (quotations omitted). Therefore, a district court may not grant a downward departure from the "applicable

Guidelines range based [only] on its own sense of justice." Id.

Chapter five part K of the Sentencing Guidelines governs departures in sentencing from the range otherwise provided by the Guidelines. See U.S.S.G. §§ 5K1.1-2.18 (1995). While most of part 5K's

subsections deal with specific circumstances enumerated by the Sentencing Commission, none of which have been implicated in the

instant case, U.S.S.G. § 5K2.0 is a "catch-all" provision allowing

departure where "there exists aggravating or mitigating circumstance[s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines

that should result in a sentence different from that described."

U.S.S.G. § 5K2.0 (policy statement) (1995) (quotations omitted). The

commentary to this section clarifies that:

In the absence of a characteristic or circumstance that distinguishes a case as sufficiently atypical to warrant a sentence

different from that called for under the guidelines, a sentence outside the guideline range is not authorized. See 18

U.S.C. § 3553(b).

U.S.S.G. § 5K2.0, comment.2 Unless contrary to federal law, see

_________________________________________________________________

2 18 U.S.C. § 3553(b) (1994) provides:

The court shall impose a sentence of the kind, and within the

range, referred to in subsection (a)(4) unless the court finds that

there exists an aggravating or mitigating circumstance of a kind,

or to a degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines that should

result in a sentence different from that described . In determining

whether a circumstance was adequately taken into consideration,

the court shall consider only the sentencing guidelines, policy

statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the

court shall impose an appropriate sentence, having due regard for

the purposes set forth in subsection (a)(2). In the absence of an

applicable sentencing guideline in the case of an offense other

 6
Stinson v. United States, 508 U.S. 36, 45 (1993), such a commentary

is binding on the district court and limits its discretion accordingly.

See Williams v. United States, 503 U.S. 193, 201 (1992) ("Where, as

here, a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of

the applicable Guideline.").

In the instant case, the district court did not find that there were any

circumstances present that were "sufficiently atypical to warrant a

sentence" outside the Guidelines' range. U.S.S.G.§ 5K2.0, comment.

Indeed, the only "circumstance" identified is that Banks would have

received a lesser sentence had she been convicted of an offense

involving the same quantity of cocaine powder rather than crack

cocaine, a circumstance mandated by the Sentencing Guidelines

themselves. Accordingly, the district court necessarily abused its discretion in deviating from the Sentencing Guidelines' range unless the

commentary to § 5K2.0 is contrary to federal law. See U.S.S.G.

§ 5K2.0, comment. (unless atypicality exists,"a sentence outside the

guideline range is not authorized" (emphasis added)).

The district court, by incorporating Judge Wald's dissent in

Anderson, held that adhering to the atypicality requirement in the

commentary to § 5K2.0 would have violated 18 U.S.C. § 3553(a)(2).

See Sent. Tr. at 250-51, reprinted in J.A. at 396-97; cf. Anderson, 82

F.3d at 445. Section 3553(a) provides that, in sentencing a criminal

defendant, "[t]he court shall impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set forth in para-

_________________________________________________________________

than a petty offense, the court shall also have due regard for the

relationship of the sentence imposed to sentences prescribed by

guidelines applicable to similar offenses and offenders, and to

the applicable policy statements of the Sentencing Commission.

(emphasis added). 18 U.S.C. § 3553(a)(4) (1994) provides that a sentence should reflect "the kinds of sentence and the sentencing range

established for . . . the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines issued by

the Sentencing Commission pursuant to section 994(a)(1) of title 28,

United States Code, and that are in effect on the date the defendant is

sentenced . . . ."

 7
graph (2) of this subsection." 18 U.S.C. § 3553(a) (1994). These purposes include "the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense . . . ." 18 U.S.C. § 3553(a)(2)(A).

Because the Sentencing Commission concluded that the substantially

harsher penalties for crack cocaine offenses than for cocaine powder

offenses was unwarranted, and because the Sentencing Commission

recommended reducing the punishment for crack cocaine offenses,

Judge Wald in her Anderson dissent and the district court in the

instant case concluded that imposing a Sentencing Guidelines' range

sentence for a crack cocaine offense represents a punishment "`greater

than necessary . . . to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense

. . . .'" Anderson, 82 F.3d at 447 (quoting 18 U.S.C. § 3553(a)(2)); see

also Sent. Tr. at 250-51, reprinted in J.A. at 396-97.3

We reject this conclusion. 18 U.S.C. § 3553 (1994) is clear that a

district court must adhere to the Sentencing Guidelines unless the sentencing court finds specific circumstances not present in this case. See

18 U.S.C. § 3553(b) ("The court shall impose a sentence of the kind,

and within the range [provided by the Sentencing Guidelines] unless

the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines

that should result in a sentence different from that described."

(emphasis added)). Section § 3553(a) does not authorize a district

_________________________________________________________________

3 The majority in United States v. Anderson, 82 F.3d 436 (D.C. Cir.),

cert. denied, 117 S. Ct. 375 (1996), held that the Sentencing Commission's conclusions and recommendations regarding the Sentencing

Guidelines' disparate treatment of crack cocaine and cocaine powder did

not constitute an "inadequate consideration" for purposes of a departure

under 18 U.S.C. § 3553(b). While noting "a few problems" with the dissent's analysis, the Anderson majority declined to consider the issue

presented in the instant case "[b]ecause the issue was not raised by appellants" in that case. See id. at 441. This Court has also concluded that the

Sentencing Commission's Special Report and proposed amendments to

the Guidelines did not allow a downward departure under 18 U.S.C.

§ 3553(b), and cited Anderson in support of this conclusion. See United

States v. Smith, No. 95-5462, slip op. at 2-3 (4th Cir. May 23, 1996) (per

curiam) (unpublished).

 8
court to depart from the sentencing range provided by the Sentencing

Guidelines. Rather, § 3553(a) provides directions to sentencing courts

for assigning sentences within the Guidelines' range. See Anderson,

82 F.3d at 441 ("given § 3553(b)'s express provision for going

outside the `range' determined by application of the Guidelines,

[§ 3553(a)] would seem presumptively directed to the court's exercise

of its discretion within that range." (majority opinion) (emphasis in

original)). In contrast to subsection (b)'s clear grant of authority to

sentencing courts to deviate from the Guidelines in only specific circumstances, subsection (a) contains no affirmative grant of any such

authority, and indeed requires the sentencing court to consider "the

kinds of sentence and the sentencing range established" by the Guidelines. See 18 U.S.C. § 3553(a)(4) (1994).

Because 18 U.S.C. § 3553(a)(2) is strictly limited to sentencing

decisions made within the Guidelines' range, there can be no conflict

between it and U.S.S.G. § 5K2.0's commentary's requirement that

sentencing courts not deviate from the Sentencing Guidelines' range

in any but atypical circumstances. Because there was nothing atypical

about this case, the district court erred in departing downward from

the Sentencing Guidelines' range. Accordingly, we reverse, and direct

the district court to impose a sentence within the mandated range of

292 to 365 months imprisonment.

III.

On cross-appeal, Banks contends that, because of the concerns

raised in the Sentencing Commission's Special Report, the district

court erred in concluding that there is a rational basis for the disparate

treatment of crack cocaine offenders compared to powder cocaine

users. In United States v. Hayden, 85 F.3d 153, 157-58 (4th Cir.

1996), we specifically rejected this precise argument. We stated:

Congress could rationally have concluded that distribution

of cocaine base [crack] is a greater menace to society than

distribution of cocaine powder and warranted greater penalties because it is less expensive and, therefore, more accessible, because it is considered more addictive than cocaine

powder and because it is specifically targeted toward

youth. . . . A Sentencing Commission report does not change

 9
our earlier holdings. Furthermore, Congress rejected the

Sentencing Commission's report and recommendation and

refused to change the disparity in crack cocaine versus powder cocaine sentences. Thus, we find the defendants' arguments as to the sentencing disparity without merit.

(quotations and citations omitted) (alterations in original). We affirm

the district court's rejection of Banks's constitutional argument.

IV.

For the foregoing reasons, we reverse the district court's sentence

and remand for resentencing consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED 

 10