                                   No. 96-1130



United States of America,   *
                                         *
                     Appellee,           *
                                         *    Appeal from the United States
          v.                             *    District Court for the
                                         *    Northern District of Iowa.
Antonio Lucas,                           *
                                         *           [UNPUBLISHED]
                    Appellant.           *



                          Submitted:     May 14, 1996

                          Filed:    July 24, 1996


Before MORRIS SHEPPARD ARNOLD, HEANEY, and HENLEY, Circuit Judges.



PER CURIAM.


     After pleading guilty to distribution of five grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1), Antonio Lucas was
sentenced to 188 months incarceration, four years supervised release, and
a fine of $800.    Lucas raises three challenges to his sentence:              (1) the
sentencing guidelines are not mandatory and binding on the district courts;
(2) the disproportionality between sentences for drug offenses involving
powder cocaine and those involving cocaine base is unconstitutional; and
(3) the district court erred by sentencing him as a career offender under
the guidelines.    We affirm.


                                   BACKGROUND


     On   August   15,   1995,   Lucas       was   charged    by   information   with
distributing five or more grams of cocaine base.             He entered into
a plea agreement with the government.        Lucas agreed to cooperate with the
government in its ongoing investigation of drug crimes in Cedar Rapids,
Iowa, and the government agreed not to file any additional drug-related
criminal charges against Lucas based on either the information it already
had or the information Lucas subsequently provided under the agreement.


     Prior to sentencing, the probation office prepared a presentence
report (PSR) that included two calculations of Lucas's offense level under
the sentencing guidelines.      The first calculation was based on the quantity
of drugs to which Lucas admitted a connection;1 it yielded an offense level
of 34.       The second computation was based on the application of the career
offender guideline, U.S.S.G. § 4B1.1(c); it also yielded an offense level
of 34.       The PSR also included a recommendation of a downward adjustment of
three levels to reflect Lucas's acceptance of responsibility.      Thus, under
either method of calculation, the total offense level would be 31.        Given
Lucas's criminal history category of VI under either method of calculation,
the corresponding sentencing range was 188 to 235 months.            The court
adopted the factual findings and guideline application of the PSR except
that it specifically declined to resolve whether Lucas was a career
offender.        The court sentenced Lucas to 188 months.




         1
       On at least two occasions, Lucas met with law enforcement
officials and provided them with information about drug purchases
he had made from 1993 until the time of his arrest for this
offense.   Based on that information, the PSR attributed 343.74
grams of cocaine base to Lucas.     Under the plea agreement, the
government granted Lucas limited use immunity for his cooperation,
meaning that none of the information Lucas provided under the
agreement would be used against him to bring additional criminal
charges in the Northern District of Iowa. However, the agreement
provided that such information would be used "by the court or
probation office at any time . . . to determine the length of
defendant's sentence."    Plea Agreement at 4.     Lucas does not
challenge the drug quantity calculation.

                                         2
     Lucas raises three challenges to his sentence on appeal:       (1) the
sentencing guidelines are not mandatory and binding on the district courts;
(2) the disproportionality between sentences for drug offenses involving
powder cocaine and those involving cocaine base is unconstitutional; and
(3) the district court erred by sentencing him as a career offender under
the guidelines.   We affirm.


                                 DISCUSSION


     Lucas first argues that the sentencing court improperly ignored its
statutory mandate by treating the sentencing guidelines as binding and
mandatory.   The basic argument--that the Sentencing Reform Act of 1984
gives sentencing courts the discretion to impose an "appropriate" sentence
regardless of the applicable guideline sentence--is not novel and our court
has squarely rejected it.   See, e.g., United States v. Johnston, 973 F.2d
611, 613 (8th Cir. 1992), cert. denied, 506 U.S. 1068 (1993); United States
v. Kelly, 956 F.2d 748, 753-56 (8th Cir. 1992) (en banc) (holding that a
sentencing court may depart from the sentencing guidelines only in the
manner prescribed by the guidelines); but see United States v. Edgar, 971
F.2d 89, 96-99 (8th Cir. 1992) (Heaney, J., concurring and dissenting)
(arguing that sentencing court has authority to impose non-guideline
sentence that comports with "purposes of sentencing or the nature of the
offense as set forth in [the Sentencing Reform Act]"); United States v.
Stockton, 968 F.2d 715, 721 (8th Cir. 1992) (Bright, J., concurring)
(advocating similar position).   Despite Lucas's claim to the contrary, he
advances no new legal argument in support of his claim.   The district court
properly concluded that it was bound by the sentencing guidelines.


     Lucas next challenges the guidelines' disparate treatment of cocaine
base and powder cocaine.       Specifically, Lucas claims that Congress's
rejection of a proposed amendment to the guidelines that would have reduced
sentences for cocaine base was "without rational




                                     3
basis and bottomed on racial discrimination."                This court has upheld the
constitutionality of the 100 to 1 penalty ratio for offenses involving
crack and powder forms of cocaine on numerous occasions.               See United States
v. Clary, 34 F.3d 709, 712 (8th Cir. 1994) (providing a comprehensive list
of citations to prior decisions by this court on the issue), cert. denied,
115 S. Ct. 1172 (1995); but see United States v. Willis, 967 F.2d 1220,
1226-27   (8th   Cir.     1992)   (Heaney,   J.,     concurring)   (arguing    that   the
crack/powder cocaine disparity is unconstitutional).               Given this court's
prior determination that Congress had rational motives for creating the
distinction between powder cocaine and cocaine base, we find no merit to
the argument that, despite the plain language of 28 U.S.C. § 994(p),2
Congress was bound to accept the Sentencing Commission's proposed amendment
to   lower    sentences    for    offenses       involving   cocaine   base.    Lucas's
constitutional challenge to the sentencing disparity between cocaine base
and powdered cocaine fails.


      Finally, Lucas contends that the district court erred by sentencing
him as a career offender under U.S.S.G. §4B1.1.                This issue is a purely
academic one.     The court explicitly declined to decide whether Lucas was
a career criminal under the guidelines and




          2
        As part of establishing the Sentencing Commission and
empowering it to amend the sentencing guidelines, Congress
specifically reserved the right to reject an amendment to the
guidelines in whole or in part. Congress provided, in relevant
part:

      [A]n amendment or modification [to the guidelines]
      shall be accompanied by a statement of the reasons
      therefor and shall take effect on a date specified
      by the Commission, which shall be no earlier than
      180 days after being so submitted and no later than
      the first day of November of the calendar year in
      which the amendment or modification is submitted,
      except to the extent that the effective date is
      revised or the amendment is otherwise modified or
      disapproved by Act of Congress.

28 U.S.C. § 994(p) (emphasis added).

                                             4
such a determination was unnecessary.    Lucas would have received the same
sentence whether the court applied the career offender guideline or
sentenced Lucas on the basis of the drug quantity and his actual criminal
history.    We find no error in the court's imposition of sentence in this
case.


        A true copy.


           Attest:


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




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