PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                    No. 96-4822

SHENITA BANKS,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4836

SHENITA BANKS,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-95-64)

Argued: October 1, 1997

Decided: December 2, 1997

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
MAGILL, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-
ion. Senior Judge Magill wrote the opinion, in which Judge Murnag-
han and Judge Niemeyer joined.

_________________________________________________________________
COUNSEL

ARGUED: William Graham Otis, Senior Litigation Counsel,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. David Preston Baugh, Richmond, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant.

_________________________________________________________________

OPINION

MAGILL, Senior Circuit Judge:

Shenita Banks was convicted in the United States District Court for
the Eastern District of Virginia of conspiring to distribute in excess
of fifty grams of crack cocaine, in violation of 21 U.S.C. § 846
(1994). Although the United States Sentencing Guidelines called for
a sentencing range of 292 to 365 months imprisonment for Banks's
crime, the district court sentenced Banks to only 133 months impris-
onment. The district court departed downward solely because the Sen-
tencing Guidelines treated crimes involving crack cocaine more
harshly than crimes involving like amounts of cocaine powder. The
government now appeals the district court's downward departure. We
reverse.

I.

Albert Betemit, Banks's co-defendant who is pursuing a separate
appeal, was the leader of a cocaine distribution network. From 1987
until 1993, Betemit and his group peddled cocaine in a variety of
communities in Virginia, including Norfolk, Newport News, Hamp-
ton, and Richmond, and also sold cocaine in Columbia, South Caro-
lina. To obtain the drugs, the group would take guns to New York
City and trade the firearms for cocaine. While Betemit and his group
initially dealt only in cocaine powder, by 1991 the group dealt exclu-
sively with crack cocaine.

Shenita Banks, who dated Betemit, became involved in the con-
spiracy in October 1991. In addition to traveling to New York some

                    2
ten to fifteen times to obtain cocaine, Banks also stored guns and
large sums of money for Betemit at her Newport News apartment.
Banks made deliveries of large amounts of cash to Betemit, and, on
at least two occasions, possessed a handgun in her car.

The drug dealing enterprise began to unravel in March 1992, when
several co-conspirators were found in possession of large amounts of
cocaine. Shortly after the co-conspirators were arrested, Betemit
ordered Banks and another co-conspirator to remove all evidence of
illegal activity from Banks's apartment. Banks complied with this
order, and removed what she suspected was cocaine residue from her
kitchen counters.

Banks was indicted on August 1, 1995, on one count of conspiring
to distribute crack cocaine, in violation of 21 U.S.C. § 846, and on
two counts of using and carrying a firearm in relation to a drug traf-
ficking crime, in violation of 18 U.S.C. § 924(c)(1), (2) (1994). Banks
pled not guilty to the charges. Following a jury trial, Banks was con-
victed on November 20, 1995, on one count of conspiring to distrib-
ute crack cocaine and on one count of possessing a firearm in relation
to a drug trafficking crime. On February 7, 1996, the district court
dismissed Banks's conviction for possession of a firearm. Banks's
sentence was based only on her conviction for conspiring to distribute
crack cocaine.

For sentencing purposes, Banks was found to have been involved
with at least 1.5 kilograms of crack cocaine. This quantity resulted in
an offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (1995) (drug quan-
tity table). In addition, Banks was assessed a two-point enhancement
for possessing a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1)
(1995). With a total offense level of 40 and a criminal history cate-
gory of I, the Sentencing Guidelines provided a range for sentencing
of 292 to 365 months imprisonment.

At sentencing, the district court addressed Banks and stated that

          the record here is clear that your involvement was far from
          just an innocent and accidental involvement. And accord-
          ingly, the fact is that you were involved in the transporting
          of a great quantity of narcotics. You were involved in han-

                    3
          dling a good bit of money. You were involved in storing
          guns and had guns in your car.

Sent. Tr. at 256-57, reprinted in J.A. at 402-03. Despite these find-
ings, however, the district court departed downward from the Sen-
tencing Guidelines' range, and imposed a sentence of 133 months,
with 13 months credit for presentencing confinement.

In departing downward in its sentencing, the district court noted the
disparity in the Sentencing Guidelines in the treatment of crack
cocaine offenses and cocaine powder offenses, see U.S.S.G.
§ 2D1.1(c)(1) (1.5 kilograms of cocaine base results in same base
offense level as 150 kilograms of powder cocaine), the Sentencing
Commission's recent efforts to change that disparity in treatment, see
United States Sentencing Commission, Special Report to the Con-
gress: Cocaine and Federal Sentencing Policy xiv (1995) (describing
Commission's findings); 60 Fed. Reg. 25,074, 25,075-76 (May 10,
1995) (proposed amendments to Sentencing Guidelines), and Con-
gress's rejection of those efforts. See Pub. L. No. 104-38, 109 Stat.
334 (1995). After distinguishing a number of cases from this Court,
the district court specifically adopted the reasoning presented by
Judge Wald in her dissent in United States v. Anderson, 82 F.3d 436,
445-50 (D.C. Cir.) (Wald, J., dissenting), cert. denied, 117 S. Ct. 375
(1996), that 18 U.S.C. § 3553(a)(2) (1994) allows a downward depar-
ture even in the absence of atypicality under U.S.S.G. § 5K2.0, com-
ment. (1995). See Sent. Tr. at 209-10, reprinted in J.A. at 354-55
("However, I believe, and I will adopt the rule as announced by Judge
Wal[d] in her dissenting opinion, I believe, that a downward departure
is appropriate for the reasons she stated there. I could not state it any
more completely or any more effectively, and I adopt it and hereby
incorporate it by reference in this opinion . . . ."); Sent. Tr. at 250,
reprinted in J.A. at 396 ("I believe the District Court is authorized to
disregard the atypical requirement, and though it should proceed cau-
tiously in this largely unchartered terrain, to grant a departure if it
determines that the application of crack guidelines to the case before
it will, in fact, plainly violate [28 U.S.C.§ 3553(a)(2)].").

The government now appeals the district court's downward depar-
ture in sentencing. In a cross-appeal, Banks contends that the district
court erred in holding that the Sentencing Guidelines' disparate treat-

                    4
ment of crack cocaine offenders and cocaine powder offenders does
not violate the constitution. See Sent. Tr. at 182, reprinted in J.A. at
326 ("I believe that it is proper to consider the method of ingestion,
the method of use, the effects of the substance, the method of packag-
ing, the method of distribution [of crack cocaine and cocaine powder]
in determining whether there is a [rational] basis for contending that
the discrepancy [between crack cocaine and cocaine powder] is an
arbitrary and capricious one. And I do not believe that there is a due
process violation because the record shows a basis which, although
I might as a finder of fact conclude otherwise and the Congress could,
in fact, make a distinction on that basis without it being arbitrary, and
so a due process challenge will fail.").1

II.

The government contends that the district court erred in granting
Banks a downward departure in sentencing. We agree.

We generally review the district court's sentencing departure for an
abuse of discretion. See United States v. Perkins, 108 F.3d 512, 515
(4th Cir. 1997). However, "`whether a factor is a permissible basis for
departure under any circumstances is a question of law, and the court
of appeals need not defer to the district court's resolution of the
point.'" Id. (quoting Koon v. United States, 116 S. Ct. 2035, 2047
(1996)). In conducting our review, we bear in mind that "[t]he pur-
pose of the Sentencing Guidelines is to avoid reducing sentencing to
_________________________________________________________________
1 The government has moved to dismiss Banks's cross-appeal, see
Appellant's Reply Br. at 5-7 & n.2, on the ground that Banks seeks only
to affirm the district court's sentence on alternative grounds. We deny
this motion. If Banks had been sentenced for 1.5 kilograms of cocaine
powder, rather than crack cocaine, her base offense level would have
been 26, see U.S.S.G. § 2D1.1(c)(7) (1995), for a total offense level of
28. The Sentencing Guidelines' range for a Category I offender at
offense level 28 is 78 to 97 months, or a maximum of three years less
than the sentence Banks received from the district court. Accordingly,
the government's characterization of Banks's argument that the Sentenc-
ing Guidelines' disparate treatment of crack cocaine and cocaine powder
is unconstitutional as one of affirmance on alternative grounds is incor-
rect.

                     5
a game of chance in which the length of the sentence is determined
by the draw of the judge." Id. (quotations omitted). Therefore, a dis-
trict court may not grant a downward departure from the "applicable
Guidelines range based [only] on its own sense of justice." Id.

Chapter five part K of the Sentencing Guidelines governs depar-
tures in sentencing from the range otherwise provided by the Guide-
lines. See U.S.S.G. §§ 5K1.1-2.18 (1995). While most of part 5K's
subsections deal with specific circumstances enumerated by the Sen-
tencing Commission, none of which have been implicated in the
instant case, U.S.S.G. § 5K2.0 is a "catch-all" provision allowing
departure where "there exists aggravating or mitigating circum-
stance[s] of a kind, or to a degree, not adequately taken into consider-
ation by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that described."
U.S.S.G. § 5K2.0 (policy statement) (1995) (quotations omitted). The
commentary to this section clarifies that:

          In the absence of a characteristic or circumstance that distin-
          guishes a case as sufficiently atypical to warrant a sentence
          different from that called for under the guidelines, a sen-
          tence outside the guideline range is not authorized. See 18
          U.S.C. § 3553(b).

U.S.S.G. § 5K2.0, comment.2 Unless contrary to federal law, see
_________________________________________________________________
2 18 U.S.C. § 3553(b) (1994) provides:

          The court shall impose a sentence of the kind, and within the
          range, referred to in subsection (a)(4) unless the court finds that
          there exists 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 that should
          result in a sentence different from that described . In determining
          whether a circumstance was adequately taken into consideration,
          the court shall consider only the sentencing guidelines, policy
          statements, and official commentary of the Sentencing Commis-
          sion. In the absence of an applicable sentencing guideline, the
          court shall impose an appropriate sentence, having due regard for
          the purposes set forth in subsection (a)(2). In the absence of an
          applicable sentencing guideline in the case of an offense other

                    6
Stinson v. United States, 508 U.S. 36, 45 (1993), such a commentary
is binding on the district court and limits its discretion accordingly.
See Williams v. United States, 503 U.S. 193, 201 (1992) ("Where, as
here, a policy statement prohibits a district court from taking a speci-
fied action, the statement is an authoritative guide to the meaning of
the applicable Guideline.").

In the instant case, the district court did not find that there were any
circumstances present that were "sufficiently atypical to warrant a
sentence" outside the Guidelines' range. U.S.S.G.§ 5K2.0, comment.
Indeed, the only "circumstance" identified is that Banks would have
received a lesser sentence had she been convicted of an offense
involving the same quantity of cocaine powder rather than crack
cocaine, a circumstance mandated by the Sentencing Guidelines
themselves. Accordingly, the district court necessarily abused its dis-
cretion in deviating from the Sentencing Guidelines' range unless the
commentary to § 5K2.0 is contrary to federal law. See U.S.S.G.
§ 5K2.0, comment. (unless atypicality exists,"a sentence outside the
guideline range is not authorized" (emphasis added)).

The district court, by incorporating Judge Wald's dissent in
Anderson, held that adhering to the atypicality requirement in the
commentary to § 5K2.0 would have violated 18 U.S.C. § 3553(a)(2).
See Sent. Tr. at 250-51, reprinted in J.A. at 396-97; cf. Anderson, 82
F.3d at 445. Section 3553(a) provides that, in sentencing a criminal
defendant, "[t]he court shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set forth in para-
_________________________________________________________________
          than a petty offense, the court shall also have due regard for the
          relationship of the sentence imposed to sentences prescribed by
          guidelines applicable to similar offenses and offenders, and to
          the applicable policy statements of the Sentencing Commission.

(emphasis added). 18 U.S.C. § 3553(a)(4) (1994) provides that a sen-
tence should reflect "the kinds of sentence and the sentencing range
established for . . . the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines issued by
the Sentencing Commission pursuant to section 994(a)(1) of title 28,
United States Code, and that are in effect on the date the defendant is
sentenced . . . ."

                     7
graph (2) of this subsection." 18 U.S.C. § 3553(a) (1994). These pur-
poses include "the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to pro-
vide just punishment for the offense . . . ." 18 U.S.C. § 3553(a)(2)(A).
Because the Sentencing Commission concluded that the substantially
harsher penalties for crack cocaine offenses than for cocaine powder
offenses was unwarranted, and because the Sentencing Commission
recommended reducing the punishment for crack cocaine offenses,
Judge Wald in her Anderson dissent and the district court in the
instant case concluded that imposing a Sentencing Guidelines' range
sentence for a crack cocaine offense represents a punishment "`greater
than necessary . . . to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense
. . . .'" Anderson, 82 F.3d at 447 (quoting 18 U.S.C. § 3553(a)(2)); see
also Sent. Tr. at 250-51, reprinted in J.A. at 396-97.3

We reject this conclusion. 18 U.S.C. § 3553 (1994) is clear that a
district court must adhere to the Sentencing Guidelines unless the sen-
tencing court finds specific circumstances not present in this case. See
18 U.S.C. § 3553(b) ("The court shall impose a sentence of the kind,
and within the range [provided by the Sentencing Guidelines] unless
the court finds that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into consider-
ation by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that described."
(emphasis added)). Section § 3553(a) does not authorize a district
_________________________________________________________________
3 The majority in United States v. Anderson, 82 F.3d 436 (D.C. Cir.),
cert. denied, 117 S. Ct. 375 (1996), held that the Sentencing Commis-
sion's conclusions and recommendations regarding the Sentencing
Guidelines' disparate treatment of crack cocaine and cocaine powder did
not constitute an "inadequate consideration" for purposes of a departure
under 18 U.S.C. § 3553(b). While noting "a few problems" with the dis-
sent's analysis, the Anderson majority declined to consider the issue
presented in the instant case "[b]ecause the issue was not raised by appel-
lants" in that case. See id. at 441. This Court has also concluded that the
Sentencing Commission's Special Report and proposed amendments to
the Guidelines did not allow a downward departure under 18 U.S.C.
§ 3553(b), and cited Anderson in support of this conclusion. See United
States v. Smith, No. 95-5462, slip op. at 2-3 (4th Cir. May 23, 1996) (per
curiam) (unpublished).

                     8
court to depart from the sentencing range provided by the Sentencing
Guidelines. Rather, § 3553(a) provides directions to sentencing courts
for assigning sentences within the Guidelines' range. See Anderson,
82 F.3d at 441 ("given § 3553(b)'s express provision for going
outside the `range' determined by application of the Guidelines,
[§ 3553(a)] would seem presumptively directed to the court's exercise
of its discretion within that range." (majority opinion) (emphasis in
original)). In contrast to subsection (b)'s clear grant of authority to
sentencing courts to deviate from the Guidelines in only specific cir-
cumstances, subsection (a) contains no affirmative grant of any such
authority, and indeed requires the sentencing court to consider "the
kinds of sentence and the sentencing range established" by the Guide-
lines. See 18 U.S.C. § 3553(a)(4) (1994).

Because 18 U.S.C. § 3553(a)(2) is strictly limited to sentencing
decisions made within the Guidelines' range, there can be no conflict
between it and U.S.S.G. § 5K2.0's commentary's requirement that
sentencing courts not deviate from the Sentencing Guidelines' range
in any but atypical circumstances. Because there was nothing atypical
about this case, the district court erred in departing downward from
the Sentencing Guidelines' range. Accordingly, we reverse, and direct
the district court to impose a sentence within the mandated range of
292 to 365 months imprisonment.

III.

On cross-appeal, Banks contends that, because of the concerns
raised in the Sentencing Commission's Special Report, the district
court erred in concluding that there is a rational basis for the disparate
treatment of crack cocaine offenders compared to powder cocaine
users. In United States v. Hayden, 85 F.3d 153, 157-58 (4th Cir.
1996), we specifically rejected this precise argument. We stated:

          Congress could rationally have concluded that distribution
          of cocaine base [crack] is a greater menace to society than
          distribution of cocaine powder and warranted greater penal-
          ties because it is less expensive and, therefore, more accessi-
          ble, because it is considered more addictive than cocaine
          powder and because it is specifically targeted toward
          youth. . . . A Sentencing Commission report does not change

                     9
          our earlier holdings. Furthermore, Congress rejected the
          Sentencing Commission's report and recommendation and
          refused to change the disparity in crack cocaine versus pow-
          der cocaine sentences. Thus, we find the defendants' argu-
          ments as to the sentencing disparity without merit.

(quotations and citations omitted) (alterations in original). We affirm
the district court's rejection of Banks's constitutional argument.

IV.

For the foregoing reasons, we reverse the district court's sentence
and remand for resentencing consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

                    10
