UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                      No. 95-5462

ANDRE R. SMITH, a/k/a Erko,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-94-79)

Submitted: February 27, 1996

Decided: May 23, 1996

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

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Vacated and remanded for resentencing by unpublished per curiam
opinion.

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COUNSEL

Helen F. Fahey, United States Attorney, William G. Otis, Senior Liti-
gation Counsel, Alexandria, Virginia, for Appellant. David P. Baugh,
Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Andre Smith pled guilty to conspiracy to possess with intent to dis-
tribute and to distribute cocaine base and heroin, see 21 U.S.C.A.
§ 841(a), 846 (West 1981 & Supp. 1995), money laundering, see 18
U.S.C.A. §§ 2, 1956(a)(1)(B)(i) (West 1969 & Supp. 1995), and using
or carrying a firearm during and in relation to a drug trafficking
crime, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1995). The Govern-
ment appeals Smith's sentence, arguing that the district court erred in
basing a downward departure on a proposed amendment to § 2D1.1
of the sentencing guidelines.* We vacate and remand for resentenc-
ing.

The district court granted Smith's motion for a downward depar-
ture based on a proposed amendment to U.S.S.G. § 2D1.1 that would
have eliminated the 100:1 ratio of powder cocaine to cocaine base,
pursuant to which Smith's guideline range had been calculated. The
district court reasoned that the Sentencing Commission's decision to
propose the amendment indicated its view that the 100:1 ratio was not
adequately considered when adopted by the Commission, and,
accordingly, that the proposed amendment provided a valid basis for
departure. See United States v. Dorsey, 61 F.3d 260, 262 (4th Cir.
1995) (noting that in order to depart the district court must first iden-
tify a circumstance not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines), cert. denied,
116 S. Ct. 732 (1996). We review de novo the district court's determi-
nation that a factor was not adequately considered by the Commis-
sion. See United States v. Hummer, 916 F.2d 186, 192 (4th Cir. 1990),
cert. denied, 499 U.S. 970 (1991).

We conclude that the mere fact that the Sentencing Commission
amends (or proposes to amend) a guideline does not necessarily mean
that the guideline was not adequately considered when adopted. And,
consistent with our repeated affirmations of the validity of the 100:1
ratio of powder cocaine to cocaine base, see, e.g., United States v.
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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Wallace, 22 F.3d 84, 88 (4th Cir.) (collecting cases), cert. denied, 114
S. Ct. 281 (1994), we conclude that the Commission's proposed
amendment to § 2D1.1 does not indicate that the 100:1 ratio was inad-
equately considered by the Sentencing Commission when it was
adopted. See also United States v. Anderson, ___ F.3d ___, 1996 WL
174568, at *2 (D.C. Cir. April 16, 1996) (holding that Commission's
proposed amendment to § 2D1.1 does not show that the Commission
failed to consider adequately the 100:1 ratio when it was adopted).
The proposed amendment therefore does not furnish a basis for down-
ward departure. Accordingly, we vacate Smith's sentence and remand
for resentencing.

VACATED AND REMANDED FOR RESENTENCING

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