UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40976

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BRAULIO RUEDA FONTS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

September 6, 1996

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:

Braulio Rueda Fonts (“Fonts”) pleaded guilty to the delivery

of crack cocaine and was sentenced to fifty-seven months, followed

by three years of supervised release. Fonts appeals, claiming that

the district court erred in refusing to make a downward departure

from the sentencing guidelines based on the different treatment

relating to crack cocaine and powder cocaine offenses and the

disparate impact the sentencing guidelines have on minorities.

Finding no error by the district court in refusing Fonts’ downward
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departure, we affirm.

BACKGROUND

Braulio Rueda Fonts plead guilty to the delivery of 4.7 grams

of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), and 18 U.S.C. § 2 on August 21, 1995 pursuant to a

written plea agreement. However, by agreement with the Government,

Fonts’ sentencing date was deferred until after November 1, 1995,

pending resolution of the Sentencing Commission’s amendments that

were being proposed as to crack cocaine offenses. Prior to his

sentencing, but before November 1, 1995, Fonts filed a motion for

downward departure pursuant to 18 U.S.C. § 3553(b) and United

States Sentencing Guideline §5K2.0, contending that the Sentencing

Commission failed to consider the sentencing disparity between

offenses involving powder cocaine and crack cocaine and the

discriminatory effect it has on minorities when the guidelines were

established. Specifically, Fonts asserts that because of the 100:1

quantity ratio between cocaine powder and crack cocaine, minorities

are predominately being sentenced for crack cocaine offenses and

thus have received much higher sentences compared to Caucasian

offenders who are usually sentenced for powder cocaine offenses.

The underlying basis for Fonts’ argument is that powder cocaine and

crack cocaine are substantially similar substances and the offenses

involving these two drugs involve substantially similar conduct,

yet crack cocaine results in disproportionate consequences on

minorities because they are sentenced more often for crack

offenses. Therefore, Fonts contends that this disparate impact on
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minorities constituted a mitigating circumstance and, thus, the

district court could depart downward from the recommended

sentencing guideline for his crack cocaine offense.

Subsequently, at Fonts’ sentencing, the district court denied

Fonts’ motion for downward departure stating that in fact the

Sentencing Commission had studied this disparity, but that it was

rejected by Congress. Moreover, the district court noted that this

circuit’s prior decisions precluded Fonts’ argument regarding the

sentencing disparity on minorities between crack cocaine and powder

cocaine as grounds for departure. The district court sentenced

Fonts to 57 months of imprisonment, followed by three years of

supervised release. Fonts appeals the district court’s refusal to

make a downward departure.

DISCUSSION

This court will not review a district court’s refusal to

depart from the sentencing guidelines unless a district court’s

refusal is a violation of the law. United States v. Guajardo, 950

F.2d 203 (5th Cir. 1991), cert. denied, 503 U.S. 1009, 112 S. Ct.

1773, 118 L. Ed. 2d 432 (1992). A violation of law occurs if the

district court refuses to depart under the mistaken assumption that

it does not have the authority to do so. United States v.

Burleson, 22 F.3d 93 (5th Cir.), cert. denied, U.S. , 115 S.

Ct. 283, 130 L. Ed. 2d 199 (1994). In reviewing a sentence, the

district court’s factual findings are reviewed for clear error, and

its legal conclusions are reviewed de novo. United States v.

Soliman, 954 F.2d 1012 (5th Cir. 1992).
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Fonts contends that the district court erred in refusing his

request to downwardly depart from the sentencing guidelines because

the district court erroneously believed that it did not have the

authority to depart from the sentencing guidelines. Fonts asserts

that prior case law which refused to recognize the sentencing

disparity between crack cocaine and powder cocaine as a grounds for

departure did not consider the Sentencing Commission’s findings

that crack cocaine and powder cocaine were substantially the same

drug, and that the criminal conduct involving crack cocaine and

powder cocaine were the same. Further, Fonts contends that the

district court’s specific findings and the Sentencing Commission’s

findings distinguish his case from prior appellate decisions and

that a downward departure to avoid sentencing disparities between

defendants found guilty of similar conduct is within the district

court’s discretionary power pursuant to 18 U.S.C. 3553(b) and

U.S.S.G. §5K2.0.

Therefore, the sole question before the Court is whether the

district court had the authority to downwardly depart from the

sentencing guidelines based on Fonts’ disparate impact argument.

For the following reasons, we conclude the district court did not.

In May 1995, the Sentencing Commission proposed amendments to

the sentencing guidelines that would eliminate the penalty

differential between crack cocaine and powder cocaine, i.e.,

proposing a 1:1 ratio between crack cocaine and powder cocaine, and

specifically suggesting that Congress drop the 100:1 ratio from its

mandatory minimums. See United States Sentencing Commission,
 

1 In rejecting the Sentencing Commission’s proposed

amendments, Congress directed the Commission to submit to it

recommendations with the guidance that “the sentence imposed for

trafficking in a quantity of crack cocaine should generally exceed

the sentence imposed for trafficking in a like quantity of powder

cocaine....” Pub. L. 104-38, 109 Stat. 334, §2(a)(1)(A).

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Amendments to the Sentencing Guidelines, 60 Fed. Reg. 25074, 25075-

76 (1995). Absent action by the Congress, these proposed

amendments would have become effective on November 1, 1995.

However, Congress rejected the Sentencing Commission’s proposed 1:1

ratio on October 30, 1995, and refused to change the disparity

between crack cocaine and powder cocaine offenses.1 See Pub. L.

104-38, 109 Stat. 334, § 1. Congress’ actions cannot be ignored.

We note that other circuits have considered whether a district

court can contemplate a downward departure based on the sentencing

disparity between crack cocaine and powder cocaine offenses on the

basis of the Sentencing Commission’s findings regarding the

similarity of crack cocaine and powder cocaine and the Commission’s

recommendation that crack cocaine and powder cocaine offenses be

sentenced similarly. However, these circuits have rejected the

notion that a district court may override the express intention of

Congress regarding penalties for crack cocaine and powder cocaine

under either 18 U.S.C. 3553(b) or § 5K2.0. See United States v.

Sanchez, 81 F.3d 9 (1st Cir. 1996), petition for cert. filed, (U.S.

July 8, 1996)(No. 96-5082); United States v. Ambers, 85 F.3d 173,

177 (4th Cir. 1996); United States v. Anderson, 82 F.3d 436, 438-42

(D.C. Cir. 1996); United States v. Booker, 73 F.3d 706, 710 (7th

Cir. 1996); United States v. Higgs, 72 F.3d 69, 70 (8th Cir. 1995).
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We join these circuits in refusing to allow a district court

to downwardly depart under these circumstances. “[I]t is not the

province of this Court to second guess Congress’ chosen penalty.

That is a discretionary legislative judgment for Congress and the

Sentencing Commission to make.” United States v. Cherry, 50 F.3d

338, 344 (5th Cir. 1995). Thus, granting a downward departure

based on the disparity between the penalties for crack cocaine and

powder cocaine offenses would be second guessing Congress’

authority. This Court, as well as others, has declined to question

the penalties for crack cocaine chosen by Congress, and we refuse

to do so in this instance. Therefore, because this Court will not

override or second-guess Congress’ actions, Fonts’ disparate impact

argument must fail. Moreover, Fonts’ sentencing occurred on

November 15, 1995, some two weeks after Congress rejected the

Sentencing Commission’s proposed amendments. This was noted by the

district court, however Fonts still contended that the district

court should make the downward departure. A defendant’s sentence

is normally based on the Sentencing Guidelines “that are in effect

on the date that the defendant is sentenced.” 18 U.S.C. §

3553(a)(4); U.S.S.G. § 1B1.11(a). Thus, the sentencing court must

apply the version of the guidelines which are in effect at the time

of the sentencing unless application of that version would violate

the Ex Post Facto Clause of the Constitution. United States v.

Ashburn, 20 F.3d 1336 (5th Cir. 1994), cert. denied, U.S. ,

115 S. Ct. 1969, 131 L. Ed. 2d 858 (1995).

Furthermore, this Court has previously determined that the
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sentencing guidelines that impose harsher sentences on those

involving crack cocaine offenses compared to those involving powder

cocaine offenses, did not violate equal protection rights of

minorities, despite the contention that statistics indicated that

minorities are convicted more often of crack cocaine offenses

whereas Caucasian are convicted more often for powder cocaine

offenses which exposes them to less sever sentences. See United

States v. McKinney, 53 F.3d 664 (5th Cir.), cert. denied, U.S.

, 116 S. Ct. 431, 133 L. Ed. 2d 346 (1995); United States v.

Cherry, 50 F.3d 338 (5th Cir. 1995); United States v. Fischer, 22

F.3d 574 (5th Cir.), cert. denied, U.S. , 115 S. Ct. 529,

130 L. Ed. 2d 433 (1994). Therefore, the district court did not

err by refusing to grant Fonts’ downward departure and by

sentencing him according to the sentencing guidelines.

For the foregoing reasons, we AFFIRM the district court’s

denial of Fonts’ Motion for downward departure and the sentence.

AFFIRM