United States v. Plain

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-31095 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRIN D. PLAIN,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 95-CR-47 - - - - - - - - - - October 23, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Darrin D. Plain challenges his sentence arising from his

conviction for distribution of cocaine base, arguing that there

is no scientific basis for making a distinction between cocaine

and cocaine base at sentencing. He argues that the applicable

sentencing provisions are ambiguous because they treat the two

substances differently and, therefore, that the rule of lenity

should have been applied by the district court at sentencing.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-31095 - 2 -

Plain also argues that the sentencing statute is ambiguous

because it does not clearly define the meaning of “cocaine base.”

This court has rejected the argument that scientific

evidence concerning the similar properties of cocaine and cocaine

base render the statutory penalties for cocaine base and cocaine

offenses sufficiently ambiguous to warrant the application of the

rule of lenity. See United States v. Flanagan, 87 F.3d 121, 123-

24 (5th Cir. 1996); United States v. Lampkin, No. 95-30131 (5th

Cir. Aug. 25, 1995) (unpublished). We have also previously

determined that the sentencing statute is not constitutionally

infirm because it does not define the meaning of cocaine base.

See United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1991),

cert. denied, 502 U.S. 1038 (1992).

AFFIRMED.