            _______________________________________________

            Nos. 95-4104NE, 95-4105NE, 95-4107NE, 95-4108NE
            _______________________________________________


     _____________                *
                                  *
     No. 95-4104NE                *
     _____________                *
                                  *
United States of America,         *
                                  *
           Plaintiff-Appellee,    *
                                  *
     v.                           *
                                  *
Martin Lewis,                     *
                                  *
           Defendant-Appellant.   *
                                  *
     _____________                *
                                  *
     No. 95-4105NE                *
     _____________                *
                                  *   On Appeal from the United
United States of America,         *   States District Court
                                  *   for the District of
           Plaintiff-Appellee,    *   Nebraska.
                                  *
     v.                           *
                                  *
Delano Eugene Maxwell,            *
                                  *
           Defendant-Appellant.   *
                                  *
     _____________                *
                                  *
     No. 95-4107NE                *
     _____________                *
                                  *
United States of America,         *
                                  *
           Plaintiff-Appellee,    *
                                  *
     v.                           *
                                  *
Hassan Majied,                    *
                                  *
           Defendant-Appellant.   *
     _____________                       *
                                         *
     No. 95-4108NE                       *
     _____________                       *
                                         *
United States of America,                *
                                         *
              Plaintiff-Appellee,        *
                                         *
     v.                                  *
                                         *
Chester Davis,                           *
                                         *
              Defendant-Appellant.       *

                                     ___________

                     Submitted:      June 14, 1996

                          Filed:     July 22, 1996
                                     ___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN,                 Circuit   Judge,   and
     KORNMANN,* District Judge.
                              ___________

RICHARD S. ARNOLD, Chief Judge.


     In this case we are asked to hold that recent developments concerning
the Sentencing Guidelines' 100:1 ratio between "crack" and powder cocaine1
justify   a   downward   departure    from    the   sentences   prescribed   by    the
                                                                   2
Guidelines for "crack" offenses.             The District Court        rejected this
contention, and we affirm.




     *The Hon. Charles B. Kornmann, United States District Judge
for the District of South Dakota, sitting by designation.
     1
      For sentencing purposes, cocaine base, or "crack," is "worth"
100 times as much as cocaine powder.       See 21 U.S.C. § 841(b):
U.S.S.G. § 2D1.1. This harsh rule results in severe sentences for
crimes involving relatively small amounts of crack cocaine, see
United States v. Willis, 967 F.2d 1220, 1226 (8th Cir. 1992)
(Heaney, J., concurring).
     2
     The Hon. Lyle E. Strom, United States District Judge for the
District of Nebraska.

                                        -2-
                                    I.


     A jury convicted the appellants of various drug-related crimes.     At
the initial sentencing, the District Court rejected the appellants' equal-
protection challenge to the 100:1 crack / powder ratio, but nonetheless
departed downward from the applicable guideline range.   The Court noted the
ratio's disparate impact on black defendants and stated that "`[t]his
disparate impact was not contemplated by Congress nor was it considered by
the Sentencing Commission in developing the guideline ranges for users of
crack cocaine.'"   United States v. Maxwell, 25 F.3d 1389, 1400 (8th Cir.)
(citation omitted), cert. denied, 115 S. Ct. 610 (1994).     Delano Maxwell
and Hassan Majied received 20-year prison sentences; Martin Lewis and
Chester Davis were given 10-year terms.


     We reversed, and remanded the case for resentencing, holding that


           [W]hile [the] racially disparate impact [of the
           ratio] may be a serious matter, it is not a matter
           for the courts, and, therefore, not a basis upon
           which a court may rely to impose a sentence outside
           of the applicable Guidelines range.


Id. at 1401 (citation omitted); see also United States v. Lattimore, 974
F.2d 971, 976 (8th Cir. 1992) ("This is not to say that a racially
disparate impact is not a serious matter."), cert. denied, 507 U.S. 1020
(1993).   We noted that "Congress specifically intended to provide more
severe penalties for cocaine base . . .."   Maxwell, 25 F.3d at 1401; see
also Lattimore, 974 F.2d at 975-76 ("Congress was reacting to the dramatic
appearance of crack on America's streets and the violent impact crack would
have upon the drug trade in the United States . . .."); see generally
United States v. Buckner, 894 F.2d 975, 978-980 & n.9 (8th Cir. 1990)
(describing legislative history).




                                    -3-
     At resentencing, the appellants again moved for downward departure.
In support, they pointed to (1) a recent statement by the President
recognizing the disparity between sentences for crack and sentences for
cocaine powder, Presidential Statement on Signing S. 1254, 1995 WL 634347
(Oct. 30, 1995); (2) the Sentencing Commission's recent recommendation
against the 100:1 ratio, U.S Sentencing Commission, Special Report to the
Congress:    Cocaine and Federal Sentencing Policy 198-200 (1995); and (3)
Public     Law   104-38    (S.   1254),     which   rejected     the   Commission's
recommendations but directed it to submit new recommendations for changing
the drug-quantity ratio.


     The District Court rejected (reluctantly) the appellants' motions for
downward departure.       The Court stated:


             It's not that I disagree with [the motions]. I'm
             denying [them] because I don't believe I have the
             authority to depart downward . . .. If I thought I
             had the authority to depart . . ., I would depart.
             But I don't believe I have the authority to do it,
             and it is for that reason that I deny the motion to
             depart.


Maxwell Sentencing Hearing, at 12 (Nov. 20, 1995).                 The Court then
sentenced Maxwell and Majied to 30-year prison terms; Davis, to 14 years;
and Lewis, to 12 years and seven months.        The appellants now argue that the
District Court erred in concluding that it lacked the authority to depart.
Put differently, the appellants believe that this Court was wrong, and the
District Court was right, the first time around.               We disagree, and we
affirm.3


      3
      The United States argues that this Court may not review the
District Court's "decision not to depart." In this case, though,
"the real question is whether the district court was correct in its
opinion that it had no power to depart, not whether it would have
chosen to depart if it had the power." United States v. Kelley,
956 F.2d 748, 751 (8th Cir. 1992). The District Court's decision
involves a "question of law," id., which we review de novo. See
Koon v. United States, --- S. Ct. ---, 1996 WL 315800 at *13 (U.S.,
June 13, 1996) (noting that "whether a factor is a permissible
basis for departure under any circumstances is a question of law .
. .").

                                          -4-
     We heard arguments in this case the day after the Supreme Court
decided Koon v. United States, --- S. Ct. ---, 1996 WL 315800 (U.S., June
13, 1996).    Counsel for appellants, demonstrating a commendable familiarity
with the law's latest developments, brought the case to our attention.              We
conclude, though, for reasons discussed below, that Koon does not support
the appellants' argument.


                                        II.


     A district court may impose a sentence outside the applicable
guideline    range   if   the   court   finds   "an    aggravating   or   mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines
. . .."      18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0.            The key question is
whether an individual case presents a "characteristic or circumstance
[which] distinguishes the case from the `heartland' cases covered by the
guidelines in a way that is important to the statutory purposes of
sentencing."    § 5K2.0.    Put differently, is the case "atypical," "one to
which a particular guideline linguistically applies but where the conduct
significantly differs from the norm"?      Koon, 1996 WL 315800 at *9 (quoting
U.S.S.G. ch.1, pt.A, intro. comment 4(b)).              Such cases are "extremely
rare."    § 5K2.0 cmt.


     We agree with the District Court that it had no authority to depart.
The crack / powder ratio and its disparate impact are not "aggravating or
mitigating    circumstances"    particular      to   the   appellants'    case   which
distinguish theirs from "heartland" cases.            Section 5K2.0 is designed to
allow district courts to "consider every convicted person as an individual
and every case as a unique




                                        -5-
study in the human failings that sometimes mitigate, sometimes magnify, the
crime and the punishment to ensue."         Koon, 1996 WL 315800 at *21 (emphasis
           4
added).        But all defendants convicted of crack-related crimes receive
harsh sentences; the appellants' cases are no different from any other,
"heartland" crack cases.            See United States v. Fike, 82 F.3d 1315, 1326
(5th   Cir.      1996)   ("Appellants     have    advanced   no   theory   which   would
distinguish their cases from the `heartland' of crack offenses.").                   The
appellants contend, in effect, that black defendants should receive less
severe sentences than other defendants convicted of crack-related offenses,
a contention we must reject.5


       In      any   event,   the   appellants'    new   evidence   (the   Commission's
recommendations, the President's statement, etc.) does not prove what they
think it does.        This evidence leaves no room to argue that Congress has not
considered the ratio's disparate impact on black defendants or that
Congress did not intend the long sentences the ratio compels.                It is true
that the Sentencing Commission "strongly recommend[ed] against a 100-to-1
quantity ratio" and proposed a new model focusing on "offender-specific
guideline enhancements," such as using juveniles in crack-dealing.                  U.S.
Sentencing Commission, Special Report, supra.            But, as we already noted in
United States v. Higgs, 72 F.3d 69, 70 (8th Cir. 1995), Congress has
rejected the Sentencing Commission's recommendation.                 We held in Higgs
that, the Commission's recommendation




       4
        The Commentary to § 5K2.0 states in part:

                      In the absence of a characteristic or
                circumstance that distinguishes a case as
                sufficiently atypical to warrant a sentence
                different from that called for under the
                guidelines, a sentence outside the guideline
                range is not authorized.
       5
      Under the Guidelines, a defendant's race is one of the few
factors that is never a permissible reason for departure. Maxwell,
25 F.3d at 1401; Koon, 1996 WL 315800 at *9 (citing U.S.S.G.
§ 5H1.10).

                                           -6-
notwithstanding, the crack-to-powder ratio's disparate impact was "not a
basis upon which a court may rely to impose a sentence outside the
applicable Guidelines range."    Id. (citing Maxwell, 25 F.3d at 1401).


      As for the President's statement, it doesn't support the appellants'
position either.    True, the President recognized the disparity between
sentences for crack and powder cocaine, said that "[s]ome adjustment is
warranted", and noted that the law he was signing (Pub. L. 104-38) directed
the Commission to "undertake additional review of these issues . . .."
Presidential Statement, supra.    More to the point, though, the President
also declared:


                  Today I reject United States Sentencing
            Commission proposals that would equalize penalties
            for crack and powder cocaine distribution by
            dramatically reducing the penalties for crack. . .
            .

                  Trafficking in crack, and the violence it
            fosters, has a devastating impact on communities
            across America, especially inner-city communities.
            Tough penalties for crack trafficking are required
            because of the effect on individuals and families,
            related gang activity, turf battles, and other
            violence.


Id.   Finally, as the President's remarks signing the Law make clear, Pub.
L. 104-38 itself also undermines the appellants' position.       The law is
titled "An Act to disapprove of amendments to the Federal Sentencing
Guidelines relating to lowering of crack sentences . . .," and it provides
that the Commission's proposed amendments concerning the 100:1 ratio "are
hereby disapproved and shall not take effect."    And although the law did
direct the Commission to study the matter further, it also stated that "the
sentence imposed for trafficking in a quantity of crack cocaine should
generally exceed the sentence imposed for trafficking in a like quantity
of powder cocaine".     Id. at § 2(a)(1)(A).     So, the appellants' new
"evidence," far from proving that the 100:1 ratio's




                                    -7-
disparate impact or severity calls for a downward departure, instead proves
that Congress (and the President and the Sentencing Commission) have
considered   the   matter,   and   that   the   ratio,   its   disparate    impact
notwithstanding, remains the law.    (Disparate impact is not enough to make
a law unconstitutional under the equal-protection component of the Due
Process Clause of the Fifth Amendment.      Discriminatory purpose is required,
and no such purpose has been proved.)


     The Supreme Court's recent decision in Koon supports our analysis.
In Koon, the Court decided that, even under the Guidelines, district courts
"retain much of their traditional sentencing discretion" and, therefore,
trial courts' decisions to depart downward--when departure is authorized--
should be reviewed for abuse of discretion, rather than de novo.            Koon,
1996 WL 315800 at *11-13.      That case provides no support, though, for
appellants' claim, which is, essentially, that the federal courts have the
power to depart downward in crack-related cases because Congress has
adopted what appellants believe is an unwise sentencing policy.            Koon in
no way undercuts our conclusion that § 5K2.0 gives district courts the
power to depart for unusual circumstances peculiar to particular cases, and
not for reasons common to a whole class of cases.6


     In the end, nothing has changed since our prior opinion in this case:
The 100:1 ratio's disparate impact on black defendants, which is without
question a disturbing fact, is not a basis upon which a court may rely to
depart downward.   See Maxwell, 25 F.3d at 1401; Higgs, 72 F.3d at 70; see
also United States v. Arrington, 73 F.3d 144, 146 (7th Cir. 1996) (noting
that "every other circuit to consider [the ratio's disparate impact] has
concluded that [it]




      6
      See Koon, 1996 WL 315800 at *19 (police officers' job loss
could not be a reason for downward departure because "[i]t is to be
expected that a government official would be subject to the career-
related consequences petitioners faced . . .").

                                      -8-
does not justify a downward departure from the guidelines") (citing cases);
United States v. Anderson, 82 F.3d 436 (D.C. Cir. 1996) (discussing Pub.
L. 104-38 and holding that Sentencing Commission's recommendation did not
empower the district court to depart downward).          As the new statute
indicates, the Commission may re-examine this question and make a new
recommendation.   That new recommendation may be that the 100:1 ratio be
changed, and "crack" sentences may someday be reduced.   But that day is not
yet, and it is our duty to apply the law as it exists today.


                                     III.


     It is not for us to decide whether the 100:1 ratio is wise or
equitable; that is a question for the popularly chosen branches of
government.    See Lattimore, 974 F.2d at 976.   They have made their view
quite plain.   We express our appreciation to appointed counsel for their
diligent service in these appeals.


     Affirmed.


     A true copy.


           Attest:


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




                                     -9-
