Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.united States of America, Appellee, v. Duan Brooks, Appellant, 72 F.3d 134 (8th Cir. 1995)

Duan Brooks challenges the 165-month sentence imposed by the district court¹  after he pleaded guilty to possession of cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). We affirm.

At sentencing, Brooks requested a downward departure under 18 U.S.C. § 3553(b). He pointed to a proposed amendment to the Sentencing Guidelines, forwarded by the United States Sentencing Commission to Congress for its consideration, which would have eradicated the sentencing distinction between crack cocaine and powder cocaine. Brooks contended the Commission's decision "to equalize the penalties for crack and powder cocaine" was a mitigating factor not adequately considered by the Commission when it formulated the existing Guidelines. The district court denied Brooks's request.

Brooks asks that we remand his case to enable the district court to clarify whether it was aware of its authority to depart or whether it simply exercised its discretion in denying his request. We conclude remand would serve no purpose, as Brooks's departure argument is foreclosed by our recent decision in United States v. Higgs, No. 95-1928, slip op. at 2 (8th Cir. Nov. 9, 1995).

Accordingly, the judgment of the district court is affirmed.