Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff--appellee, v. Eugene Mansfield, Defendant--appellant, 64 F.3d 660 (4th Cir. 1995)

Eugene Mansfield entered a guilty plea to two counts of possession of crack cocaine ("cocaine base") with intent to distribute, 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1995). He was sentenced to a term of 240 months imprisonment. Mansfield contends on appeal that the district court erred in sentencing him under the higher penalties provided in the statute for cocaine base. We affirm.

In the district court, Mansfield presented expert testimony to support his argument that cocaine and cocaine base are the same substance, that Sec. 841 is therefore ambiguous in that it provides different sentences for offenses involving the same controlled substance, making the rule of lenity applicable, and that the rule of lenity requires that he be sentenced under the cocaine provisions. Both at sentencing and on appeal, Mansfield relies on United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994). This court has recently rejected the reasoning in Davis, and has found that Sec. 841 is not ambiguous, but results from a deliberate congressional intent to differentiate between crack and cocaine powder, and to impose heavier sentences on crack offenses. United States v. Fisher, --- F.3d ---, 1995 WL 377367 (4th Cir. June 27, 1995).

Accordingly, we affirm the sentence imposed by the district court. 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