1

The Honorable Howard F. Sachs, United States District Judge

for the Western District of Missouri.

___________

No. 95-2712

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Western District of Missouri.

Kevin Lamar Harris, also known *

as Littleman, * [UNPUBLISHED]

 *

Appellant. *

___________

 Submitted: January 2, 1996

 Filed: January 8, 1996 ___________

Before BOWMAN, BEAM, and MURPHY, Circuit Judges. ___________

PER CURIAM.

Kevin Lamar Harris, an African-American, challenges the 120-

month sentence imposed by the district court1 after he pleaded

guilty to distributing cocaine base (crack) and possessing cocaine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

We affirm.

When Harris was arrested, following his purchase of cocaine

from a confidential informant, police officers recovered a semiautomatic pistol from the driver's side floorboard of the car

Harris was driving. Harris stipulated that the gun was loaded with

a clip containing eleven rounds and a live round in the chamber.

Harris's presentence report contained a recommendation for a twolevel dangerous-weapon enhancement under U.S.S.G. § 2D1.1(b)(1).
 2

In a letter submitted pursuant to Federal Rule of Appellate

Procedure 28(j), Harris contends the Supreme Court's recent

decision in Bailey v. United States, Nos. 94-7448 & 94-7492, 1995

WL 712269 (U.S. Dec. 6, 1995), is "dispositive of [the dangerousweapon enhancement] issue." We reject this argument. See

Bailey, 1995 WL 712269, at *9 (referring to section 2D1.1(b)(1)

enhancement as tool for dealing with those who mix guns and

drugs, but whose conduct does not fall within meaning of section

924(c)(1)). 

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Harris objected, contending that the gun was not his. In support,

he introduced his sister's testimony at sentencing that she bought

the gun and placed it under the seat when she borrowed the car from

another sister the day before Harris was arrested. The district

court overruled Harris's objection.

On appeal, Harris challenges the dangerous-weapon enhancement,

arguing that it is not supported by any evidence. We reject his

argument and conclude the district court did not clearly err in

assessing the enhancement. See United States v. Darden, Nos. 94-

3386/3448/3449/3451/3452/3453/3456, slip op. at 69, 1995 WL 689372

(8th Cir. Nov. 22, 1995) (standard of review). The Guidelines

provide for a two-level enhancement if the defendant possessed a

firearm. U.S.S.G. § 2D1.1(b)(1). The enhancement "should be

applied if the weapon was present, unless it is clearly improbable

that the weapon was connected with the offense"; the enhancement

"reflects the increased danger of violence when drug traffickers

possess weapons." Id. comment. (n.3).

For purposes of section 2D1.1(b)(1), and contrary to Harris's

argument, the government did not have to show he used the gun2;

although the gun's mere presence would not support the enhancement,

constructive possession would. See United States v. Turpin, 92O

F.2d 1377, 1386 (8th Cir. 1990), cert. denied, 499 U.S. 953 (1991);

see also United States v. Hayes, 15 F.3d 125, 127 (8th Cir.)

(defining constructive possession), cert. denied, 114 S. Ct. 2718

(1994). Even if, as he contends, Harris did not have the gun on
 3

Federal Sentencing Guidelines, Amendment, Disapproval, Pub.

L. No. 104-38, 1995 U.S.S.C.A.N. (109 Stat.) 334.

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his person when he bought the cocaine, the gun was readily

accessible to him, it was loaded and had a bullet in the chamber,

and it was near the cocaine when he tried to elude authorities.

See Turpin, 920 F.2d at 1386-87 (finding sufficient nexus where gun

observed "between" co-defendants seated in car); United States v.

Figueroa, 900 F.2d 1211, 1218 (8th Cir.) (upholding dangerousweapon enhancement where gun found under defendant's car seat),

cert. denied, 496 U.S. 942 (1990). Moreover, the district court

was free to discredit the testimony of Harris's sister. See United

States v. Wyatt, 19 F.3d 1283, 1284 (8th Cir. 1994) (per curiam);

see also United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.

1993) (district court's credibility determinations virtually

unreviewable on appeal). 

Next, Harris argues the district court erred in refusing to

sentence him in accordance with a proposed amendment to the

Sentencing Guidelines--which would have eliminated the 100-to-1

ratio between the penalties for crack cocaine and powder cocaine--

forwarded by the United States Sentencing Commission to Congress

for its consideration. We conclude the district court properly

refused to sentence Harris in accordance with the proposed

amendment, which was subsequently rejected by Congress.3

 See

United States v. Lamere, 980 F.2d 506, 512 (8th Cir. 1992)

(district court could not have erred by failing to consider

application note that was merely proposed but never adopted).

Finally, Harris contends that the distinction between the

penalties for crack cocaine and powder cocaine has a disparate

impact upon African-Americans in violation of the Equal Protection

Clause. He points to the United States Sentencing Commission's

February 1995 conclusion that the 100-to-1 ratio is not justified,

and urges us to reconsider our decision in United States v. Clary,
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34 F.3d 709 (8th Cir. 1994) (holding that any disparate impact on

African-Americans resulting from 100-to-1 ratio does not violate

Equal Protection Clause), cert. denied, 115 S. Ct. 1172 (1995). We

have consistently rejected such claims, see, e.g., United States v.

Delaney, 52 F.3d 182, 189 (8th Cir.), cert. denied, 116 S. Ct. 209

(1995), and have recently refused to reconsider Clary, United

States v. Thompson, 51 F.3d 122, 127 (8th Cir. 1995); see also

United States v. Polanco, 53 F.3d 893, 896 (8th Cir. 1995) (only

court en banc can overturn decision of another panel of court),

pet. for cert. filed, No. 95-5022 (U.S. June 29, 1995).

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

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