                                      ___________

                                      No. 96-2103
                                      ___________

United States of America,                     *
                                              *
              Appellee,                       *
                                              *     Appeal from the United States
      v.                                      *     District Court for the
                                              *     District of Nebraska.
William Sellers,                              *
                                              *          [UNPUBLISHED]
              Appellant.                      *


                                      ___________

                      Submitted:      October 10, 1996

                            Filed:    October 11, 1996
                                      ___________

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
                               ___________

PER CURIAM.

      William    Sellers,     an    African-American,          challenges   the     84-month
                                                     1
sentence    imposed by the district court                after he pleaded guilty to
possessing cocaine base (crack) with intent to distribute, in violation of
21 U.S.C. § 841(a)(1).       We affirm.


      At issue is Sellers's offense-level calculation, which was derived
from the penalty scheme set forth in 21 U.S.C. § 841(b)(1), providing the
same penalties for given amounts of crack and 100 times greater amounts of
powder     cocaine.       Sellers    argues       that   the    100-to-1    ratio    has   a
disproportionate adverse effect on African-Americans; Congress's rejection
of   the Sentencing Commission's proposed amendment to the Sentencing
Guidelines--which would have eliminated the 100-to-1 ratio and equalized
the penalties for crack




      1
      The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska.
and powder cocaine--evidences a discriminatory purpose on Congress's part
in maintaining the penalty scheme; and, thus, continued application of the
scheme violates his Fifth Amendment equal protection and due process
rights.   Sellers also contends the district court erred in not departing
downward under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, based on the
Commission's conclusion that the 100-to-1 ratio was not justified.


     We recently rejected similar arguments in United States v. Carter,
91 F.3d 1196, 1198-99 (8th Cir. 1996) (per curiam) (equal protection and
due process challenges), and in United States v. Lewis, 90 F.3d 302, 304-06
(8th Cir. 1996) (downward-departure challenge).


     Accordingly, the judgment of the district court is affirmed.


     A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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