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 Antonio Lucas, * * [UNPUBLISHED] Appellant.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 o f cocaine ba se in violation of 21 U.S.C. § 841(a)(1), Antonio Lucas wa s sentenced to 188 mont hs 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 cour t erred by sentencing him as a career offender under the guidelines. We affirm.

BACKGROUND

On August 15, 1995, Lucas was charged by information wit h distributing five or more grams of cocaine base. He entered into

### On at least two occasions, Lucas met with law enforcemen t 1 

### officials and provided them with information about drug purchases he had made from 1993 until the time of his arrest for thi s offense. Based on that information, the PSR attributed 343.7 4 gr ams of cocaine base to Lucas. Under the plea agreement, th e government granted Lucas limit ed use immunity for his cooperation, mea ning that none of the information Lucas provided under th e agr eement would be used against him to bring additional crimina l charges in the Northern District of Iowa. However, the agreement provided that such information would be used "by the court o r probation office at any time . . . to determine the length o f defendant's sentence." Plea Agreement at 4. Lucas does no t challenge the drug quantity calculation.
2 a plea agreement with the government. Lucas agreed to cooperate with the gov ernment in its ongoing investigation of drug crimes in Cedar Rapids , Iow a, and the government agreed not to file any additional drug-relate d criminal charges agai nst 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 presentenc e report (PSR) that included two calculations of L ucas's offense level under the sentencing guidelines. The first calculation was based on the quantit y of drugs to which Lucas admitted a connection; it yielded an o ffense level 1 of 34. The second co mputation 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 o f a downward adjustment of three levels to reflect Lucas's acceptance of re sponsibility. Thus, under either method of calc ulation, 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 cour t adopted the factual findings and guideline application of the PSR except that it specifically declined to resolve whether Lucas was a caree r offender. The court sentenced Lucas to 188 months.

### 3 Lucas raises three challenges to his sentence on appeal: (1) th e 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 cour t erred by sentencing him as a career offender under the guidelines. We affirm.

DISCUSSION

Lucas fir st argues that the sentencing court improperly ignored its statut ory mandate by treating the sentencing guidelines as binding an d mandatory. The basic argument--that the Sentencing Reform Act of 198 4 gives sentencing courts the discretion to impose an "appropriate" sentence regardless of the applicable guideline sentence--is not novel and our cour t 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 State s
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 th e 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 ) (a rguing that sentencing court has authority to impose non-guidelin e sentence that comports with "purposes of sentencing or the nature of the offense as set forth in [the Sentencing Reform Act]"); United States v

. Stoc kton , 968 F.2d 715, 721 (8th Cir. 1992) (Bright, J., concurring ) (advocating similar p osition). Despite Lucas's claim to the contrary, he advances no new legal argument in support of his claim. The district cour t properly concluded that it was bound by the sentencing guidelines.

Lucas next challenges the guidelines ' disparate treatment of cocaine base a nd powder cocaine. Specifically, Lucas claims that Congress' s rejection of a proposed amendment to the guidelines that would have reduce d sentences for cocaine base was "without rational

### As part of establishing the Sentencing Commission an d 2 

### empowering it to amend the sentencing guidelines, Congres s spe cifically reserved the right to reject an amendment to th e guidelines in whole or in part. Congress provided, in relevan t 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 tha n 180 days after being so submit ted and no later than the first day of November of the calendar year i n which the amendment or modification is submitted , ex cept to the extent that the effective date i s re vised or the amendment is otherwise modified o r 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 involvin g crack and powder forms of cocaine on numerous occasions. See United State s v. Clary , 34 F.3d 709, 712 (8th Cir. 1994) (prov iding 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 , 1226-2 7 (8th Cir. 1992) (Heaney, J., concurring) (arguing that th e crack/powder cocaine disparity is unconstitutional). Given this court's prior determination that Congress had rational motives for creating th e distinction between powder cocaine and cocaine base, we find no merit to the argume nt that, despite the plain language of 28 U.S.C. § 994(p), 2 Congress was bound to accept the Sentencing Commission's proposed amendmen t to low er sentences for offenses involving cocaine base. Lucas' s constitutional challe nge 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 purel y 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 senten ce whether the court applied the career offender guideline o r sentenced Lucas on th e 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.