Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Richard v. Hamilton, Iii, Defendant-appellant, 62 F.3d 1415 (4th Cir. 1995)

Richard V. Hamilton, III, entered a guilty plea to both counts of an indictment charging him with possession of 20.48 grams of crack cocaine, 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1995), and with possession of a firearm in relation to a drug trafficking crime, 18 U.S.C.A. Sec. 924(c) (West Supp.1995). He was sentenced to serve 121 months imprisonment for the drug conviction and a consecutive 60 months for the firearm offense. Hamilton appeals his sentence on the ground that the penalties for crack offenses set out in Sec. 841 and the sentencing guidelines are void for vagueness or inapplicable under the rule of lenity. We affirm.

Hamilton bases his challenge to the crack penalties in Sec. 841 on United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994), which held that distinct penalties for cocaine and cocaine base were meaningless because the substances were the same. This court has recently rejected the same argument, finding that Sec. 841 is not ambiguous, and that Congress intentionally created heavier penalties for the particularly harmful form of cocaine known as "cocaine base" or "crack." Because the statute is not ambiguous, the rule of lenity does not apply. United States v. Fisher, --- F.3d ----, 1995 WL 377367 (4th Cir. June 27, 1995).

We therefore 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