Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Robert William Lawhorn, Defendant-appellant, 70 F.3d 1263 (4th Cir. 1995)

Robert William Lawhorn pled guilty to possession of crack cocaine (cocaine base) with intent to distribute, 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1995), and was sentenced to serve a term of 157 months. He appeals his sentence, contending that the district court erred in sentencing him under the enhanced penalties for crack set out in Sec. 841. He argues that cocaine and cocaine base are the same, making the statute ambiguous and requiring the use of the lower penalty according to the rule of lenity.

Lawhorn acknowledges that we rejected his argument in United States v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, 64 U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923), but asks us to reconsider our holding in Fisher. As we are unwilling to do so, 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