64 F.3d 661
UNITED STATES of America, Plaintiff--Appellee,
Leroy WARLEY, Defendant--Appellant.
United States of America, Plaintiff--Appellee,
Alexandro Lester Barron, Defendant--Appellant.
Nos. 95-5094, 95-5103.
United States Court of Appeals, Fourth Circuit.
Submitted July 27, 1995
Decided Aug. 16, 1995
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
William E. Martin, Federal Public Defender, Eric D. Placke, Asst. Federal Public Defender, Greensboro, NC., J. Clark Fischer, Randolph & Fischer, Winston-Salem, NC, for appellants.
Walter C. Holton, Jr., U.S. Atty., Michael F. Joseph, Asst. U.S. Atty., Greensboro, NC., for appellee.
Before ERVIN, Chief Judge, MOTZ, Circuit Judge, and PHILLIPS, Senior Circuit Judge.
Leroy Warley and Alexandro Lester Barron each entered a guilty plea to a one-count information charging them with possession of 108 grams of cocaine base ("crack") with intent to distribute, 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1995). Barron received a sentence of 62 months imprisonment, and Warley received a sentence of 60 months imprisonment. Both were sentenced under the safety valve provision of guideline section 5C1.2,* and in both cases the district court departed downward under section 5K1.1, p.s. Warley and Barron appeal their sentences, contending that the court should have sentenced them using the lower penalties for powder cocaine because it and cocaine base are the same substance, making Sec. 841 ambiguous and the rule of lenity applicable. We affirm.
This court has recently considered the issue raised by Warley and Barron and has concluded that Sec. 841 is not ambiguous in its treatment of powder cocaine and crack cocaine. United States v. Fisher, --- F.3d ---, 1995 WL 377367 (4th Cir. June 27, 1995). Rather, the statute and the legislative history demonstrate that Congress intended to penalize offenses involving crack cocaine more severely. The rule of lenity therefore does not apply.
Accordingly, we affirm the sentences 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.
United States Sentencing Commission, Guidelines Manual (Nov.1994)