UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5469

EDDIE YOUNG, III, a/k/a Bobo,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5561

DIANE YOUNG CURRY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5571

TYRONE YATES,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-94-30136)

Submitted: March 12, 1996

Decided: March 27, 1996

Before MURNAGHAN, ERVIN, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Tracy Weese, Shepherdstown, West Virginia; Christopher P. Riley,

Wheeling, West Virginia; Jeffrey W. McCamic, MCCAMIC &

MCCAMIC, Wheeling, West Virginia, for Appellants. William D.

Wilmoth, United States Attorney, Paul T. Camilletti, Assistant United

States Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Eddie Young, III, Diane Young Curry, and Tyrone

Yates ("Appellants") each pled guilty to one count of distributing

cocaine base in violation of 21 U.S.C. § 841(a)(1) (1988) and were

sentenced respectively to 135 months, 108 months, and 87 months.

They contend that the disparity in sentencing guidelines for cocaine

base and cocaine powder resulted in an equal protection violation, and

that they should be resentenced because the trial court allegedly failed

to make a finding of fact that the substance they distributed was

"crack" cocaine. Additionally, Curry also appeals the district court's

refusal to depart downward under USSG § 5K2.13 (Nov. 1995) for

her reduced mental capacity. She claims the district court failed to

realize it had the authority to depart. Finding no error, we affirm.

We reject the Appellants' first argument, as we specifically have

held that the cocaine base/cocaine powder disparity does not violate

the Equal Protection Clause of the Fifth Amendment. See United

States v. Fisher, 58 F.3d 96 (4th Cir.), cert. denied, ___ U.S. ___, 64

U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923); United States v.

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Bynum, 3 F.3d 769 (4th Cir. 1993), cert. denied, ___ U.S. ___, 62

U.S.L.W. 3552 (U.S. Feb. 22, 1994) (No. 93-7295).

We also reject the Appellants' second argument, since they each

accepted plea agreements specifically characterizing the substance

they distributed as "crack," fully agreed to the plea agreements during

Fed. R. Crim. P. 11 colloquys, and stipulated to relevant conduct

involving "crack" cocaine.

Finally, we also reject Curry's argument regarding the downward

departure. This court may not review a district court's refusal to

depart downward unless it was based on an erroneous belief that it

lacked the authority to do so. United States v. Hypolite, 65 F.3d 1151,

1159 (4th Cir. 1995) (citing United States v. Bayerle, 898 F.2d 28 (4th

Cir.), cert. denied, 498 U.S. 819 (1990)). In rejecting Curry's motion

for a downward departure, the court stated

[w]hile I might have the authority for some discretion to

apply the Guideline, I simply believe that the facts in this

case do not justify or warrant the reduction in sentence,

using this policy statement of this Guideline. So, I am going

to deny the motion for a downward departure.

The statement does not reflect an erroneous belief by the district court

that it lacked the authority to depart, but a belief that Curry did not

deserve the departure. Accordingly, the district court's decision is not

reviewable. Hypolite, 65 F.3d at 1159.

Accordingly, we affirm the Appellants' sentences. We dispense

with oral argument because the facts and legal contentions are adequately presented in the material before the court and argument would

not aid the decisional process.

AFFIRMED

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