103 F.3d 134
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Gary LUFKIN, Defendant-Appellant.
No. 96-1481.
United States Court of Appeals, Seventh Circuit.
Submitted Nov. 25, 1996.1Decided Nov. 26, 1996.

Before POSNER, Chief Judge, and MANION and DIANE P. WOOD, Circuit Judges.

ORDER

1
Defendant Gary Lufkin pleaded guilty to knowing and intentional possession with intent to distribute 2.37 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2.  He was sentenced to 77 months' imprisonment, and five years' supervised release.  On appeal, defendant contends that the district court erred in enhancing his statutory maximum penalty due to a prior drug conviction, pursuant to 28 U.S.C. § 994(h), which is inconsistent with Application Note 2 to U.S.S.G. § 4B1.1.  The inconsistent sentencing guidelines application note shortens the prison terms of career offenders in drug-related cases, while the federal statute requires more severe sentences for certain career offenders.  In United States v. Hernandez, 79 F.3d 584 (7th Cir.1996), pet'n for cert. filed, No. 95-9335 (June 17, 1996), we held that the statute controlled.  We decline to overrule Hernandez.2  As a result, we will not vacate defendant's sentence.  Accordingly, the judgment of the district court is AFFIRMED.



1
 After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and record.  See Fed.R.App.P. 34(a);  Cir.R. 34(f)


2
 The Supreme Court presently has the question pending before it in a First Circuit case which held contrary to the Seventh Circuit's holding in Hernandez.  United States v. LaBonte, 70 F.3d 1396 (1st Cir.1995), certiorari granted, 116 S.Ct. 2545 (U.S. June 24, 1996), No. 95-1726.   All other circuits addressing the question have agreed with the Seventh Circuit.  United States v. Novey, 78 F.3d 1483 (10th Cir.1996), pet'n for cert. filed, No. 95-8791 (April 29, 1996);  United States v. Fountain, 83 F.3d 946, 950 (8th Cir.1996), pet'n for cert. filed, No. 96-6001 (Sept. 11, 1996);  United States v. Branham, 97 F.3d 835 (6th Cir.1996);  United States v. McQuilkin, 97 F.3d 723 (3d Cir.1996)


