United States v. Brown

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 95-5905

WINSTON CARL BROWN, Defendant-Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., District Judge. (CR-95-26)

Submitted: July 25, 1996

Decided: August 19, 1996

Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles D. Luckey, BLANCO, TACKABERY, COMBS & MATA- MOROS, P.A., Winston-Salem, North Carolina, for Appellant. Wal- ter C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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OPINION

PER CURIAM:

Winston Carl Brown appeals the 108-month sentence he received after he pled guilty to possession of crack cocaine with intent to dis- tribute, 21 U.S.C.A. S 841 (West 1981 & Supp. 1996). He contends that the district court failed to recognize its authority to depart down- ward because of the Sentencing Commission's proposal to amend the sentencing guideline pertaining to crack offenses. USSG S 2D1.1.* We affirm.

While Brown's appeal was pending, this court held that the pro- posed revision does not mean that the Sentencing Commission failed adequately to consider the distinction between crack and powder cocaine when USSG S 2D1.1 was formulated. United States v. Ambers, ___ F.3d ___, 1996 WL 288946 (4th Cir. June 3, 1996). In addition, Ambers holds that "the broad issue of proper sentencing levels for crack offenses does not involve the sort of individual, miti- gating circumstance justifying a departure." Id. Consequently, the dis- trict court did not err in holding that the proposed amendment was not a basis for departure.

We therefore affirm the sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED _________________________________________________________________ *United States Sentencing Commission, Guidelines Manual (Nov. 1995).