UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 95-5573
MARIE DOMINIQUE, a/k/a Mellisa
Jones,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-95-53)

Submitted: March 21, 1996

Decided: April 4, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Timika Shafeek, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Marie Dominique pled guilty to possession of crack cocaine with
intent to distribute, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995),
and was sentenced to a term of 151 months imprisonment. She main-
tains on appeal that the district court erred in finding that she was not
a minor participant. United States Sentencing Commission,
Guidelines Manual § 3B1.2(b) (Nov. 1994). She also contends that
the district court erred in finding that it lacked the authority to depart
below the guideline range based on the Sentencing Commission's
1995 proposal to amend USSG § 2D1.1 by equalizing base offense
levels for crack and powder cocaine offenses. We affirm.

Dominique was arrested after a rental car in which she was a pas-
senger was stopped for following too closely and driving erratically
on Interstate 85 in North Carolina. The driver and the passenger who
had rented the car consented to a search of the car but gave conflict-
ing accounts of why they had come to Greensboro. One said they had
come to visit nightclubs while the other said they had come to pick
up Dominique at the airport. The driver did not know the name of the
other male passenger. When Dominique got out of the car, she
wrapped a coat around her waist. She consented to a search, but then
resisted. A female deputy subsequently searched Dominique. She was
carrying three packages of crack and powder cocaine concealed under
her clothing. The other occupants of the car were not charged.

When interviewed by the probation officer, Dominique said she
had agreed to transport the packages, even though she suspected they
contained drugs, as a favor to a man she did not know but had seen
around her block in Brooklyn, New York. The man had allegedly
asked her help the night before and, when she agreed, had given her
a plane ticket in a false name and instructions.* After the presentence
_________________________________________________________________
*Dominique also said she had never been arrested before, an assertion
which proved false and earned her an adjustment for obstruction of jus-
tice. USSG § 3C1.1.

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report was filed, Dominique requested a minor role adjustment and a
downward departure based on the Sentencing Commission's proposed
amendment to USSG § 2D1.1 relating to penalties for crack offenses.

The district court refused to give Dominique a minor role adjust-
ment. The court decided that her account of transporting drugs as a
favor to a man she barely knew strained credulity, and that her refusal
to give information about the others involved made a determination
of her relative culpability impossible. Dominique had the burden of
showing that she was entitled to the adjustment; the sentencing court
must compare the defendant's culpability with that of other partici-
pants (if possible) and also measure her actions and culpability
against the elements of the offense. United States v. Reavis, 48 F.3d
763, 769 (4th Cir.), cert. denied, #6D6D 6D# U.S. ___, 63 U.S.L.W. 3890
(U.S. June 19, 1995) (No. 94-9316). Because Dominique had not car-
ried her burden of proof, we find that the district court did not clearly
err in denying her the adjustment.

The district court also found that it was without authority to deviate
from the applicable guidelines in anticipation of the proposed amend-
ment. Dominique argues on appeal that the district court did not rec-
ognize its authority to depart and that resentencing is required so that
the court may decide whether a departure is warranted. Under the test
set out in United States v. Hummer, 916 F.2d 186, 192 (4th Cir.
1990), cert. denied, 499 U.S. 970 (1991), a departure is possible if the
court identifies a mitigating circumstance not adequately considered
under the guidelines. A decision not to depart is normally not review-
able on appeal, United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.),
cert. denied, 498 U.S. 819 (1990). However, when a court bases its
decision on a perception that it lacks the legal authority to depart, that
legal decision is reviewed de novo. United States v. Hall, 977 F.2d
861, 863 (4th Cir. 1992).

We find that the district court did not err in deciding that it lacked
authority to depart on the ground advanced by Dominique. The Sen-
tencing Commission's proposal to reformulate the guidelines for
offenses involving powder cocaine and crack cocaine did not become
law. The guideline follows the penalty structure set out in § 841,
which was reaffirmed by Congress when it disapproved the proposed

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amendment. See United States v. Booker, 73 F.3d 706, 710 (7th Cir.
1996).

The sentence imposed by the district court is therefore affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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