                            ___________

                            No. 95-2146
                            ___________

United States of America,        *
                                 *
          Appellee,              *
                                 *   Appeal from the United States
     v.                          *   District Court for the
                                 *   Eastern District of Missouri.
Sherman Burks,                   *       [UNPUBLISHED]
                                 *
          Appellant.             *


                            ___________

                  Submitted:   December 29, 1995

                       Filed: January 19, 1996
                            ___________

Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

     Sherman Burks, an African-American, appeals the 97-month
sentence imposed by the district court1 after he pleaded guilty to
distributing cocaine base (crack), in violation of 21 U.S.C.
§ 841(a)(1). We affirm.


     Following the preparation of his presentence report, Burks
objected to his offense-level calculation. Burks contended that no
scientific difference existed between crack cocaine and powder
cocaine, and that the penalty provisions set forth in 21 U.S.C.
§ 841(b) were thus void for vagueness or rendered inapplicable by
operation of the rule of lenity.     He also argued that Congress
enacted section 841(b) in an arbitrary and irrational manner,


     1
      The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
resulting in a disparate impact upon African-Americans in violation
of his due process and equal protection rights.


     Burks relied on United States v. Davis, 864 F. Supp. 1303
(N.D. Ga. 1994), appeal pending (No. 95-8057 11th Cir.), in which
the district court, after an evidentiary hearing, held that the
terms "cocaine" and "cocaine base" were synonymous; that the
penalty provisions of section 841(b) set forth a scientifically
meaningless distinction between cocaine and cocaine base; and that
the heightened penalties for cocaine base must be ignored by
operation of the rule of lenity.      864 F. Supp. at 1309.     In
support, Burks submitted copies of the Davis court records--
including Davis's memorandum of law, the hearing transcript, and
the district court's decision.


     In addition, Burks sought a downward departure under 18 U.S.C.
§ 3553(b) and U.S.S.G. § 5K2.0, based on the United States
Sentencing Commission's February 1995 report concluding that the
100-to-1 ratio between the penalties for crack cocaine and powder
cocaine was not justified, and a proposed Guidelines amendment--
which would have eliminated the 100-to-1 ratio--forwarded by the
Commission to Congress for its consideration. Burks renews his
claims on appeal.


     We conclude Burks's void-for-vagueness and rule-of-lenity
arguments are foreclosed by our decision in United States v.
Jackson, 64 F.3d 1213, 1219-20 (8th Cir. 1995); his due process and
equal protection arguments are foreclosed by our decision in United
States v. Jackson, 67 F.3d 1359, 1367 (8th Cir. 1995); and his
downward-departure argument is foreclosed by our decision in United
States v. Higgs, No. 95-1928, slip op. at 2, 1995 WL 716193 (8th
Cir. Nov. 9, 1995) (per curiam).


     Accordingly, the judgment of the district court is affirmed.


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A true copy.


     Attest:


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




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