                                   ___________

                                   No. 95-3885
                                   ___________

United States of America,          *
                                   *
           Appellee,               *
                                   * Appeal from the United States
      v.                           * District Court for the Western
                                   * District of Missouri.
Kenny L. Smith, also known as      *
Kenney L. Smith, Thomas            *
Williams, "Kilo,"                  *
                                   *
           Appellant.              *
                              ___________

                      Submitted:   March 12, 1996

                          Filed:   April 26, 1996
                                   ___________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                               ___________

BEAM, Circuit Judge.


     Kenny Smith appeals his conviction for possession with intent to
distribute cocaine base (crack cocaine) in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A).    Smith argues the district court1 erred in denying
his motion to suppress evidence and in setting his base offense level.    We
affirm.


I. BACKGROUND


     On February 28, 1995, Kenny Smith returned to Kansas City from Los
Angeles via Amtrak.    Several drug interdiction officers were at the station
watching passengers arriving on trains from known drug source cities.
Smith's train was one of the conveyances under observation.      After Smith
got off the train, he caught the




     1
      The Honorable Scott O. Wright, United States District Judge
for the Western District of Missouri.
attention       of   one       of   the   interdiction   officers,   Officer    Wilson,   by
repeatedly glancing nervously in Wilson's direction and carrying his jacket
instead of wearing it despite the cold February weather.
     After noticing these irregularities, Officer Wilson approached Smith,
identified himself as a police officer, and asked him if he would answer
some questions.       Smith agreed to speak with Officer Wilson who then asked
Smith if he had his train ticket.              Although Smith searched his suitcase for
the ticket, he apparently did not find it or produce it.                  Officer Wilson
then asked to search Smith's jacket for illegal narcotics.                Smith held the
jacket toward Officer Wilson and implied that the search would reveal
nothing.    Officer Wilson found a nylon pouch containing approximately one
kilogram of crack cocaine sewn into the jacket's lining.                  In response to
Officer Wilson's discovery, Smith stated that the jacket was not his, but
that he had simply taken the jacket from the train after it went unclaimed
by its true owner for two days.


     Smith was arrested and charged with possession with intent to
distribute crack cocaine.             Before trial, Smith moved to suppress the crack
cocaine found in the jacket and his statements to the police.                  Adopting the
                           2
magistrate judge's             report and recommendation, the district court denied
the motion and Smith was convicted.               At sentencing, Smith objected to the
presentence report, arguing it incorrectly set his base offense level at
36, based on possession of 1,018.8 grams of crack cocaine.                     The district
court nevertheless accepted that base offense level and sentenced Smith to
188 months in prison with five years supervised release (base offense level
36; criminal history category I).


     Smith appeals alleging that, in searching the jacket at the train
station, Officer Wilson transformed the encounter into an




            2
         The Honorable John T. Maughmer, Chief United                               States
Magistrate Judge for the Western District of Missouri.

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investigatory stop which was not supported by the necessary reasonable
suspicion.      Smith further argues that the 1,018.8 grams of crack cocaine
found on his possession should have been treated as powder cocaine for
sentencing because the disparity in penalties between crack and powder
cocaine in the sentencing guidelines is unconstitutional.         Finding these
arguments unavailing, we affirm Smith's conviction and sentence.


II.   DISCUSSION


      Smith argues the crack cocaine found in the jacket at the train
station should have been suppressed.        We disagree.3   Nothing in the stop
transformed what was a consensual encounter into an investigatory stop.
It is well settled that law enforcement officers may approach individuals
in public places and ask them to answer some questions (if they are willing
to listen) without offending the Fourth Amendment, as long as reasonable
persons would know they could refuse to cooperate.     Florida v. Bostick, 501
U.S. 429, 431 (1991); United States v. Robinson, 984 F.2d 911, 913 (8th
Cir. 1993).      That is all that occurred here.    Smith was approached in a
public place and willingly answered the questions posed by Officer Wilson.
The encounter was clearly consensual.


      Despite appellant's claims to the contrary, the consensual tone of
the conversation did not end when Officer Wilson asked to search the
jacket.4      The district court found that Smith


          3
       We also disagree with Smith's argument on appeal that his
statements to the police should have been suppressed.      As the
district court found, Smith was "fully and fairly advised of his
rights and voluntarily and knowingly waived his right to remain
silent without any coercion whatsoever." Consequently, we find no
error in the district court's denial of the motion to suppress
Smith's statements.
      4
      Appellant offers our decision in United States v. Green, 52
F.3d 194, 197 (8th Cir. 1995), in support of this argument. In
Green, we reversed a similar conviction, finding no reasonable
suspicion to justify the investigatory stop to which the defendant
had been subjected. Appellant urges us to reverse here as well.
In so doing, however, appellant overlooks the key fact in our
discussion in Green, i.e., that Green refused to consent to the

                                      -3-
voluntarily handed the jacket to Officer Wilson, showing his consent to the
search of the jacket and its contents.           That finding was not clearly
erroneous.    United States v. Parris, 17 F.3d 227, 229 (8th Cir.), cert.
denied, 114 S. Ct. 1662 (1994).      Had Smith refused his consent, a different
case might have been presented.      However, on these facts, Smith's consent
prevented the encounter from becoming an investigatory stop and therefore
alleviated the need for the encounter to be justified by reasonable
suspicion.5   See United States v. Washington, 957 F.2d 559, 563 (8th Cir.)
(encounter which remains consensual is not transformed into investigatory
stop and need not be justified by reasonable suspicion), cert. denied, 506
U.S. 883 (1992).     Consequently, the crack cocaine discovered during the
search was properly admitted into evidence at trial.6        See Schneckloth v.
Bustamonte, 412 U.S. 218, 227-28 (1973).


     Smith    next   argues   that   his   sentence   violates   both   his   equal
protection and due process rights.           Specifically, Smith attacks the
disparities in penalties for crack and powder forms of cocaine found in the
sentencing guidelines.   He argues that the 1,018.8 grams of crack cocaine
for which he was held responsible should be




search of her bag. Id. In this case, there was no such refusal.
Instead, Smith freely consented to the search.   Therefore, the
Green decision is inapplicable to these facts.
     5
     Because of our finding that Smith consented to the search, we
need not address the abandonment issue raised by the government.
     6
      Smith further argues that the police lacked probable cause to
arrest him.    The success of this argument is contingent upon a
finding that the cocaine was improperly seized and should have been
suppressed. Because the police committed no error in conducting
the jacket search, however, we find that the cocaine constituted
probable cause for Smith's arrest.

                                       -4-
treated as powder cocaine for sentencing purposes.                    This treatment would
reduce his base offense level from 36 to 26.


     Smith,    who     is   black,    argues       that   the   100    to   1   ratio   works
disproportionately to the disadvantage of blacks and other minorities in
violation of their equal protection rights.               In his due process argument,
Smith claims there is no difference between crack and powder cocaine, so
there can be no rational basis for distinguishing between penalties for the
two substances.       These arguments are precluded by this court's earlier
decisions in which we expressly held that the different treatments given
crack and powder cocaine by the sentencing guidelines do not violate either
the right to equal protection or the right to due process as                     guaranteed
by the Constitution.        See, e.g., United States v. Jackson, 67 F.3d 1359,
1367 (8th Cir. 1995); United States v. Clary, 34 F.3d 709, 710 (8th Cir.
1994), cert. denied, 115 S. Ct. 1172 (1995); United States v. Buckner, 894
F.2d 975, 978 (8th Cir. 1990).         We have considered the remainder of Smith's
arguments and find them to be without merit.


III. CONCLUSION


     Because    the    district      court   correctly      denied     Smith's    motion   to
suppress evidence and did not err in determining his base offense level,
we affirm.


     A true copy.


             Attest:


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




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