No. 96-1130

 

United States of America, *

*

 Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Antonio Lucas, *

* [UNPUBLISHED]

Appellant. *

 

Submitted: May 14, 1996

 Filed: July 24, 1996

 

Before MORRIS SHEPPARD ARNOLD, HEANEY, and HENLEY, Circuit Judges.

 

PER CURIAM.

After pleading guilty to distribution of five grams or more of

cocaine base in violation of 21 U.S.C. § 841(a)(1), Antonio Lucas was

sentenced to 188 months incarceration, four years supervised release, and

a fine of $800. Lucas raises three challenges to his sentence: (1) the

sentencing guidelines are not mandatory and binding on the district courts;

(2) the disproportionality between sentences for drug offenses involving

powder cocaine and those involving cocaine base is unconstitutional; and

(3) the district court erred by sentencing him as a career offender under

the guidelines. We affirm.

BACKGROUND

On August 15, 1995, Lucas was charged by information with

distributing five or more grams of cocaine base. He entered into
 On at least two occasions, Lucas met with law enforcement

1

officials and provided them with information about drug purchases

he had made from 1993 until the time of his arrest for this

offense. Based on that information, the PSR attributed 343.74

grams of cocaine base to Lucas. Under the plea agreement, the

government granted Lucas limited use immunity for his cooperation,

meaning that none of the information Lucas provided under the

agreement would be used against him to bring additional criminal

charges in the Northern District of Iowa. However, the agreement

provided that such information would be used "by the court or

probation office at any time . . . to determine the length of

defendant's sentence." Plea Agreement at 4. Lucas does not

challenge the drug quantity calculation.

2

a plea agreement with the government. Lucas agreed to cooperate with the

government in its ongoing investigation of drug crimes in Cedar Rapids,

Iowa, and the government agreed not to file any additional drug-related

criminal charges against Lucas based on either the information it already

had or the information Lucas subsequently provided under the agreement.

Prior to sentencing, the probation office prepared a presentence

report (PSR) that included two calculations of Lucas's offense level under

the sentencing guidelines. The first calculation was based on the quantity

of drugs to which Lucas admitted a connection; it yielded an offense level 1

of 34. The second computation was based on the application of the career

offender guideline, U.S.S.G. § 4B1.1(c); it also yielded an offense level

of 34. The PSR also included a recommendation of a downward adjustment of

three levels to reflect Lucas's acceptance of responsibility. Thus, under

either method of calculation, the total offense level would be 31. Given

Lucas's criminal history category of VI under either method of calculation,

the corresponding sentencing range was 188 to 235 months. The court

adopted the factual findings and guideline application of the PSR except

that it specifically declined to resolve whether Lucas was a career

offender. The court sentenced Lucas to 188 months. 
3

Lucas raises three challenges to his sentence on appeal: (1) the

sentencing guidelines are not mandatory and binding on the district courts;

(2) the disproportionality between sentences for drug offenses involving

powder cocaine and those involving cocaine base is unconstitutional; and

(3) the district court erred by sentencing him as a career offender under

the guidelines. We affirm.

DISCUSSION

Lucas first argues that the sentencing court improperly ignored its

statutory mandate by treating the sentencing guidelines as binding and

mandatory. The basic argument--that the Sentencing Reform Act of 1984

gives sentencing courts the discretion to impose an "appropriate" sentence

regardless of the applicable guideline sentence--is not novel and our court

has squarely rejected it. See, e.g., United States v. Johnston, 973 F.2d

611, 613 (8th Cir. 1992), cert. denied, 506 U.S. 1068 (1993); United States

v. Kelly, 956 F.2d 748, 753-56 (8th Cir. 1992) (en banc) (holding that a

sentencing court may depart from the sentencing guidelines only in the

manner prescribed by the guidelines); but see United States v. Edgar, 971

F.2d 89, 96-99 (8th Cir. 1992) (Heaney, J., concurring and dissenting)

(arguing that sentencing court has authority to impose non-guideline

sentence that comports with "purposes of sentencing or the nature of the

offense as set forth in [the Sentencing Reform Act]"); United States v.

Stockton, 968 F.2d 715, 721 (8th Cir. 1992) (Bright, J., concurring)

(advocating similar position). Despite Lucas's claim to the contrary, he

advances no new legal argument in support of his claim. The district court

properly concluded that it was bound by the sentencing guidelines.

Lucas next challenges the guidelines' disparate treatment of cocaine

base and powder cocaine. Specifically, Lucas claims that Congress's

rejection of a proposed amendment to the guidelines that would have reduced

sentences for cocaine base was "without rational
 As part of establishing the Sentencing Commission and

2

empowering it to amend the sentencing guidelines, Congress

specifically reserved the right to reject an amendment to the

guidelines in whole or in part. Congress provided, in relevant

part:

[A]n amendment or modification [to the guidelines]

shall be accompanied by a statement of the reasons

therefor and shall take effect on a date specified

by the Commission, which shall be no earlier than

180 days after being so submitted and no later than

the first day of November of the calendar year in

which the amendment or modification is submitted,

except to the extent that the effective date is

revised or the amendment is otherwise modified or

disapproved by Act of Congress.

28 U.S.C. § 994(p) (emphasis added).

4

basis and bottomed on racial discrimination." This court has upheld the

constitutionality of the 100 to 1 penalty ratio for offenses involving

crack and powder forms of cocaine on numerous occasions. See United States

v. Clary, 34 F.3d 709, 712 (8th Cir. 1994) (providing a comprehensive list

of citations to prior decisions by this court on the issue), cert. denied,

115 S. Ct. 1172 (1995); but see United States v. Willis, 967 F.2d 1220,

1226-27 (8th Cir. 1992) (Heaney, J., concurring) (arguing that the

crack/powder cocaine disparity is unconstitutional). Given this court's

prior determination that Congress had rational motives for creating the

distinction between powder cocaine and cocaine base, we find no merit to

the argument that, despite the plain language of 28 U.S.C. § 994(p),2

Congress was bound to accept the Sentencing Commission's proposed amendment

to lower sentences for offenses involving cocaine base. Lucas's

constitutional challenge to the sentencing disparity between cocaine base

and powdered cocaine fails.

Finally, Lucas contends that the district court erred by sentencing

him as a career offender under U.S.S.G. §4B1.1. This issue is a purely

academic one. The court explicitly declined to decide whether Lucas was

a career criminal under the guidelines and
5

such a determination was unnecessary. Lucas would have received the same

sentence whether the court applied the career offender guideline or

sentenced Lucas on the basis of the drug quantity and his actual criminal

history. We find no error in the court's imposition of sentence in this

case. 

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.