72 F.3d 69
UNITED STATES of America, Appellee,v.Jason D. HIGGS, Appellant.
No. 95-1928.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 6, 1995.Decided Nov. 9, 1995.

William L. Meiners, U.S. Attorney's Office, Kansas City, MO, for United States.
Albert A. Riederer, Wyrsch & Atwell, Kansas City, MO, Jason D. Higgs, El Reno, OK, Kathleen Kopach Woods, Kansas City, MO, for Jason D. Higgs.
Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
PER CURIAM.


1
Jason D. Higgs appeals the 228-month sentence imposed by the district court1 after he pleaded guilty to distribution of cocaine base (crack), in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A), and use of a firearm in relation to the distribution of crack, in violation of 18 U.S.C. Sec. 924(c).  We affirm.


2
On appeal, Higgs contends the district court erred in not granting him a downward departure under U.S.S.G. Sec. 5K2.0.  He points to the United States Sentencing Commission's February 1995 conclusion that the 100-to-1 ratio between penalties for crack and powder cocaine was not justified, arguing that the Commission's conclusion constitutes a mitigating factor that the Commission did not take into consideration when it formulated the existing Sentencing Guidelines.  Higgs suggests that a proposed amendment to the Guidelines--eradicating the 100-to-1 ratio--which the Commission forwarded to Congress subsequent to his sentencing, also justifies a downward departure.


3
We may not review Higgs' claim that the district court erred in failing to depart downward.  See United States v. McMurray, 34 F.3d 1405, 1414 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1164, 130 L.Ed.2d 1119 (1995);  United States v. Johnson, 28 F.3d 1487, 1500 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 768, 130 L.Ed.2d 664 (1995).  Notwithstanding that a "racially disparate impact [of the current sentencing scheme] may be a serious matter," only Congress or the Sentencing Commission, and not the courts, can effect a change in the Guidelines, and thus this is "not a basis upon which a court may rely to impose a sentence outside of the applicable Guidelines range."  United States v. Maxwell, 25 F.3d 1389, 1401 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994).  We note that Congress recently rejected the Commission's proposed amendment.


4
Accordingly, the judgment of the district court is affirmed.



1
 The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri


