PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5698

DANIEL PERKINS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 95-5750

DANIEL PERKINS,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-30-A)

Argued: September 27, 1996

Decided: March 10, 1997

Before WILKINSON, Chief Judge, and RUSSELL and HALL,
Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Russell wrote the
opinion, in which Chief Judge Wilkinson and Judge Hall joined.

_________________________________________________________________
COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appel-
lant. Glenn Cameron Alexander, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

Daniel Perkins was the leader of a loose-knit group of Northern
Virginia drug dealers. The Government's five-count indictment
charged Perkins with conspiracy to distribute drugs and the distribu-
tion of marijuana and crack cocaine. At Perkins' bench trial in May
1995, the district court found him guilty on one count of distributing
50 grams or more of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1).

The issues in this appeal all arise out of Perkins' sentencing. The
Presentence Investigation Report determined that Perkins was respon-
sible for distributing over 1.5 kilograms of crack cocaine, creating a
base offense level of 38.1 Perkins received a four-level upward adjust-
ment for being an organizer or leader of a criminal activity involving
five or more participants,2 and a two-level reduction for acceptance
of responsibility.3 Perkins had two prior drug-related offenses, and he
was still on probation when he committed the current offense, result-
ing in a criminal history category of III.4 Based on these calculations,
the applicable Sentencing Guidelines range was 360 months to life.

At the sentencing hearing, the district court declined to accept all
of the recommendations in the report. The district court gave Perkins
a three-level, instead of a two-level, reduction for acceptance of
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (1994).
2 Id. at § 3B1.1(a).
3 Id. at § 3E1.1(a).
4 Id. at § 4A1.1(c) & (d).

                    2
responsibility. In addition, the district court determined that Perkins'
correct criminal history category was II. These adjustments lowered
the applicable Guidelines range to 292 to 365 months.

Perkins, who is black, then argued that he should receive a down-
ward departure from the Guidelines range for two reasons. First, a
sentencing disparity exists between defendants charged with crimes
involving cocaine base and defendants charged with crimes involving
cocaine powder. The Sentencing Commission had recommended a
reduction in this disparity, expressing concern over the fact that
cocaine base prosecutions overwhelmingly involve black defendants.
Second, codefendants in his case received more lenient sentences.
After limited discussion, and despite verbally rejecting most of Per-
kins' arguments, the district court gave him a downward departure
from 292 months to 240 months. The reduced sentence placed Perkins
"at the top of the heap in terms of any sentencing that's occurred in
the case," the district court announced, "but my sense of symmetry
and justice -- and, I think, it more than satisfies any criminal justice
need for that much time." The Government was not invited to respond
to the announced sentence prior to the close of the hearing.

In its Findings and Reasons for Sentence Imposed, the district court
offered the following justifications for its 52-month downward depar-
ture: 1) the comparatively lenient treatment given to similarly culpa-
ble codefendants; 2) the fact that most of Perkins' codefendants were
white, leading to an unwarranted racial disparity in sentencing; and
3) a decreased sentence more accurately reflected Perkins' relative
culpability in the conspiracy. Both Perkins and the Government
appeal the district court's sentencing decisions.

I.

The purpose of the Sentencing Guidelines is to avoid reducing sen-
tencing to a game of chance "in which the length of the sentence is
determined by the draw of the judge."5 Accordingly, a district court
may not depart from an applicable Guidelines range based on its own
sense of justice.
_________________________________________________________________

5 United States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996).

                     3
The Government argues that the district court erred in granting a
downward departure. We review departures for abuse of discretion.6
As the Supreme Court has held, however, "whether a factor is a per-
missible basis for departure under any circumstances is a question of
law, and the court of appeals need not defer to the district court's res-
olution of the point."7 The exact question posed by this appeal is
whether a sentencing disparity among codefendants, a racial disparity
in sentencing among codefendants, and relative culpability in the
criminal enterprise ever constitute permissible bases for departure.
Hence, we are required to accord the decision of the district court lit-
tle or no deference.

Under the law of this circuit, disparate sentences among codefen-
dants is an impermissible ground for departure. 8 In support of its posi-
tion, the district court discussed the lower sentence given to Rhonda
Sturgill, a codefendant who pleaded to charges in state court. The dis-
trict court failed to mention, however, that Sturgill had acted as a con-
fidential informant for the Drug Enforcement Administration. In
United States v. Hall, we held that nationwide uniformity in the sen-
tencing of similar defendants is undermined when a departure is
granted based on a sentence given to a codefendant,"regardless of
whether the sentence was imposed in a federal or state forum."9 In
addition, the disparity cited by the district court resulted from a proper
exercise of prosecutorial discretion in selecting what charges to bring
against each codefendant.10

The racial disparity in sentencing and relative culpability bases are
simply different ways of justifying the district court's desire to equate
Perkins' sentence with those of his codefendants. Nonetheless, we
will address them as independent grounds for departure. The Sentenc-
ing Commission has determined that race can never be a basis for
_________________________________________________________________
6 Koon v. United States, 116 S.Ct. 2035, 2046 (1996).
7 Id. at 2047.

8 United States v. Ellis, 975 F.2d 1061, 1066 (4th Cir. 1992). See also
Withers, 100 F.3d at 1149 n.3 (reaffirming holding of Ellis and noting
unanimous agreement among circuits which have addressed issue).
9 977 F.2d 861, 864 (4th Cir. 1992).
10 United States v. Piche, 981 F.2d 706, 719 (4th Cir. 1992).

                     4
departure.11 The district court not only violated the Sentencing Guide-
lines by granting a downward departure based on a racial disparity in
sentencing, but also ignored the non-racial reasons why Perkins
should receive the highest Guidelines sentence. In particular, Perkins
was the only codefendant to go to trial, he had a prior criminal record,
he sold more illegal drugs than anyone else in the group, and he was
determined to be a leader in the enterprise.

Finally, it is axiomatic that a proper application of the Sentencing
Guidelines determines the relative culpability of a defendant for pur-
poses of sentencing. In this case, the district court found that Perkins
was a leader or organizer of the drug ring and was personally respon-
sible for distributing over 1.5 kilograms of crack cocaine. These fac-
tors contributed to Perkins' offense level and helped determine the
applicable Guidelines range. Departures based on"relative culpabil-
ity" would allow district courts to ignore their own factual determina-
tions.

None of the grounds cited by the district court constitute permissi-
ble bases for a downward departure. The district court's abuse of dis-
cretion would normally require us to vacate Perkins' sentence.12

II.

Perkins argues that by failing to object to the downward departure
at the sentencing hearing, however, the Government gave up its right
to appeal the district court's abuse of discretion. This circuit has
adopted the "accepted rule of appellate procedure that ordinarily an
appellate court will not consider an issue not raised in the court from
which the appeal is taken."13 Therefore, absent plain error, the failure
to object to a sentencing issue acts as a waiver. 14
_________________________________________________________________
11 U.S. Sentencing Guidelines Manual § 5H1.10, p.s. (1995); United
States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996).
12 Koon, 116 S.Ct. at 2047 ("A district court by definition abuses its
discretion when it makes an error of law.").
13 United States v. Davis, 954 F.2d 182, 187 (4th Cir. 1992) (citation
and internal quotation omitted).
14 Fed. R. Crim. P. 52(b); United States v. Grubb, 11 F.3d 426, 440 (4th
Cir. 1993).

                    5
We are troubled by the idea that the Government's failure to offer
immediate opposition to the unwarranted departure should be deemed
a waiver when there was no notice that a departure might be granted
on the grounds stated by the district court;15 the grounds were not
clarified at the sentencing hearing; and the hearing was closed without
the Government being afforded an opportunity to respond to the sen-
tence determination.16 For the purpose of argument, however, we will
assume that a showing of plain error is required. In order to obtain
plain error review, the Government has to establish more than an
abuse of discretion by the district court. According to the Supreme
Court in United States v. Olano, before vacating the sentence we must
be convinced that (1) an error was committed; (2) the error was plain,
meaning obvious; and (3) the error affected substantial rights - in
other words, the error was so prejudicial as to affect the outcome of
the proceedings.17 Once these threshold requirements are satisfied, we
must also decide whether the error "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings."18

As evidenced by our discussion in Section I, the district court's
downward departure was plain error. This circuit has held that a
defendant can meet the Olano conditions if he challenges, for the first
time on appeal, an illegal sentence that increases the length of
incarceration.19 However, we have not previously addressed whether
the government can meet the Olano conditions if it challenges, for the
first time on appeal, an illegal sentence that decreases the length of
incarceration. A minor circuit split has developed over the issue, with
earlier cases applying a "manifest injustice" standard used prior to
Olano. The Fifth and Eighth Circuits have refused to correct plain
_________________________________________________________________
15 See United States v. Muzika, 986 F.2d 1050, 1055 (7th Cir. 1993) (no
waiver because district court failed to give government adequate notice);
United States v. Alba, 933 F.2d 1117, 1120 (2nd Cir. 1991) (same).
16 See United States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990) (no
waiver because government did not have opportunity to object following
sentencing).
17 507 U.S. 725, 732-37 (1993); United States v. Castner, 50 F.3d 1267,
1277 (4th Cir. 1995).
18 Olano, 507 U.S. at 736 (internal quotation marks omitted; alteration
in the original); United States v. Lockhart, 58 F.3d 86, 88 (4th Cir. 1995).
19 United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996).

                    6
error based on an appeal by the government of a sentencing issue,
noting that allowing the illegal sentences to stand would not result in
manifest injustice.20 The First, Sixth, Tenth, and D.C. Circuits, how-
ever, have stated that the government can obtain plain error review.21

In United States v. Rodriguez, the First Circuit held that the imposi-
tion of a sentence below the statutory minimum affected substantial
rights and remanded the case for resentencing.22 The court could "dis-
cern no principled basis for restricting access to`plain error' review
of an illegal sentence" to defendants.23 The Sixth Circuit, in United
States v. Barajas-Nunez, applied the Olano conditions and agreed that
reviewing courts should not assume "that only defendants and never
the government should be able to demonstrate that a plain error
affected substantial rights."24 The court also remanded the case for
resentencing, holding that "permitting sentencing courts to disregard
governing law would diminish the integrity and public reputation of
the judicial system."25
_________________________________________________________________
20 United States v. Filker, 972 F.2d 240, 242 (8th Cir. 1992) (erroneous
downward departure from Sentencing Guidelines); United States v. Post-
ers 'N' Things, Ltd., 969 F.2d 652, 663 (8th Cir. 1992) (violation of stat-
utory minimum); United States v. Ragan, 952 F.2d 1049, 1049-50 (8th
Cir. 1992) (erroneous downward departure from Sentencing Guidelines);
United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990) (viola-
tion of statutory minimum), disapproved in part on other grounds,
United States v. Calverly, 37 F.3d 160, 163 (5th Cir. 1994). See also
United States v. Prichett, 898 F.2d 130, 131 (11th Cir. 1990) (per
curiam) (discussing waiver but failing to apply a plain error standard).
21 United States v. Barajas-Nunez , 91 F.3d 826 (6th Cir. 1996) (errone-
ous downward departure from Sentencing Guidelines); United States v.
Zeigler, 19 F.3d 486 (10th Cir. 1994) (change in law since original sen-
tencing); United States v. Edelin, 996 F.2d 1238 (D.C. Cir. 1993) (erro-
neous downward departure from Sentencing Guidelines); United States
v. Rodriguez, 938 F.2d 319 (1st Cir. 1991) (violation of statutory mini-
mum).
22 938 F.2d at 322 (quoting Fed. R. Crim. P. 52(b)).

23 Id. at 322 n.4.
24 91 F.3d at 833.

25 Id.

                     7
Federal Rule of Criminal Procedure 52(b) provides that "plain
errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court." The rule draws
no distinction between the government and defendants. As Justice
Cardozo noted, "[J]ustice, though due to the accused, is due to the
accuser also."26 Under Olano, the government can demonstrate an
effect on substantial rights if the plain error prejudiced the outcome
of the proceedings. In this case, the district court's plain error allowed
Perkins to receive an unwarranted 52-month reduction, "thereby
affecting the substantial rights of the government and the people of
the United States that this defendant be sentenced correctly in accor-
dance with the legal principles of the Sentencing Guidelines."27

The bestowing of a windfall sentence reduction on an undeserving
crack dealer also seriously affects the fairness, integrity, and public
reputation of judicial proceedings.28 The district court was obligated
to properly apply the Sentencing Guidelines. Instead, it chose to frus-
trate the Guidelines' goal of national sentencing uniformity by grant-
ing a downward departure based on its own "sense of symmetry and
justice." We strongly disapprove of the district court's actions and
exercise our discretion to correct the plain error.

III.

Not content with the overly generous findings of the district court,
Perkins attempts to reduce his sentence even further. First, Perkins
contends that the district court erred in giving him an upward adjust-
ment in his offense level based on his role as an organizer or leader
of the criminal activity. We review role in the offense adjustments for
clear error.29 According to Perkins, he only had a buyer/seller rela-
tionship with his codefendants. The record in this case, however,
includes evidence that Perkins directed the activities of other mem-
bers of the drug ring and facilitated the criminal enterprise by renting
_________________________________________________________________
26 Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).
27 Barajas-Nunez, 91 F.3d at 833.
28 Filker, 972 F.2d at 242-43 (Fagg, J., dissenting).
29 Withers, 100 F.3d at 1147 (citing United States v. White, 875 F.2d
427, 431 (4th Cir. 1989)).

                     8
apartments, acquiring pagers, hiring a lawyer for a codefendant, and
paying for the bond of another codefendant. The district court cor-
rectly determined that Perkins was an organizer or leader.

Second, Perkins argues that the cocaine base penalty provision in
21 U.S.C. § 841(b) is void for vagueness because Congress failed to
define "cocaine base" in the statute. We have consistently rejected due
process challenges to § 841(b). In United States v. Pinto we held "that
for the purposes of section 841, the term `cocaine base' includes
cocaine freebase, commonly referred to as crack."30 Any vagueness
inherent in the statute does not rise to the level of a constitutional vio-
lation.

Finally, Perkins claims that the cocaine base penalty provision vio-
lates equal protection. For the purpose of sentencing, one unit of
cocaine base is equated with one hundred units of cocaine powder.31
Depending on the exact quantity of drugs involved, the mandatory
minimum penalties and the Sentencing Guidelines require prison
terms for cocaine base defendants that range from three to almost
eight times longer than for defendants with equivalent amounts of
cocaine powder.32 Perkins argues that this sentencing disparity vio-
lates equal protection because whites are more frequently convicted
of offenses involving cocaine powder, while blacks are more fre-
quently convicted of offenses involving cocaine base.33

We have repeatedly held that the sentencing disparity between
cocaine powder and cocaine base does not give rise to an equal pro-
tection claim.34 While acknowledging our decisions, Perkins urges us
to reconsider in light of a 1995 report by the United States Sentencing
Commission showing that over eighty percent of those convicted for
_________________________________________________________________

30 905 F.2d 47, 50 (4th Cir. 1990). See also United States v. Wallace,
22 F.3d 84, 88 (4th Cir. 1994) (expressly rejecting void for vagueness
challenge and citing Pinto).
31 21 U.S.C. § 841(b)(1)(A)(i) & (iii) (1994).
32 United States Sentencing Commission, Special Report to the Con-
gress: Cocaine and Federal Sentencing Policy, 145 (1995).

33 Id. at 156.
34 See, e.g., United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir.), cert.
denied, 116 S.Ct. 329 (1995) (citing other Fourth Circuit cases for same
proposition).

                     9
cocaine base trafficking or possession are black. 35 The report includes
the results of a National Household Survey on Drug Abuse indicating
that blacks constitute a much lower percentage of cocaine base users.36
The fact that the statute does not have a uniform racial impact, how-
ever, is not enough to establish an equal protection violation. Even
after the release of the Sentencing Commission report, this court reaf-
firmed that § 841(b) is facially neutral, is not being applied in a dis-
criminatory manner, and there is no evidence that a discriminatory
purpose motivated Congress to pass the statute. 37 Perkins fails to
counter these findings. Absent such a showing, § 841(b) is examined
under the rational basis test. As we found in United States v. Thomas,
"Congress could rationally have concluded that distribution of
cocaine base is a greater menace to society than distribution of
cocaine powder and warranted greater penalties. . . ."38 Perkins is
unable to establish a claim.

IV.

For the foregoing reasons, we reject Perkins' claims.39 In addition,
Perkins' unwarranted downward departure is vacated and the case is
remanded to the district court for resentencing within the applicable
Guidelines range of 292 to 365 months.

VACATED AND REMANDED
_________________________________________________________________

35 Cocaine and Federal Sentencing Policy at 156.
36 Id. at 39. The survey did not include the homeless, prisoners, and
those in residential drug treatment. Furthermore, there is no statistical
data on the demographic breakdown of cocaine traffickers. Id. at 31-2.

37 United States v. Burgos, 94 F.3d 849, 877 (4th Cir. 1996) (en banc)
(citing United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir. 1994)),
petition for cert. filed, (U.S. Nov. 21, 1996) (No. 96-6868).

38 900 F.2d 37, 39-40 (4th Cir. 1990). See also United States v. Hayden,
85 F.3d 153, 157-58 (4th Cir. 1996) (reaffirming holding of Thomas and
noting agreement of "many other circuits").

39 After the filing with the Clerk of the opinion herein, the panel
received from the Clerk a petition of the defendant for leave to file a sup-
plemental brief. We have reviewed the supplemental brief, and we find
nothing in it that would affect or change in any way our opinion. There-
fore, we dismiss the motion.

                    10
