Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Winston Carl Brown, Defendant-appellant, 94 F.3d 642 (4th Cir. 1996)

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US Court of Appeals for the Fourth Circuit - 94 F.3d 642 (4th Cir. 1996)

Submitted July 25, 1996. Decided Aug. 19, 1996

Charles D. Luckey, BLANCO, TACKABERY, COMBS & MATAMOROS, P.A., Winston-Salem, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.



Winston Carl Brown appeals the 108-month sentence he received after he pled guilty to possession of crack cocaine with intent to distribute, 21 U.S.C.A. S 841 (West 1981 & Supp.1996). He contends that the district court failed to recognize its authority to depart downward because of the Sentencing Commission's proposal to amend the sentencing guideline pertaining to crack offenses. USSG S 2D1.1.*  We affirm.

While Brown's appeal was pending, this court held that the proposed revision does not mean that the Sentencing Commission failed adequately to consider the distinction between crack and powder cocaine when USSG S 2D1.1 was formulated. United States v. Ambers, --- F.3d ---, 1996 WL 288946 (4th Cir. June 3, 1996). In addition, Ambers holds that "the broad issue of proper sentencing levels for crack offenses does not involve the sort of individual, mitigating circumstance justifying a departure." Id. Consequently, the district court did not err in holding that the proposed amendment was not a basis for departure.

We therefore affirm the sentence. 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.



United States Sentencing Commission, Guidelines Manual (Nov.1995)