
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1565                                    UNITED STATES,                                      Appellee,                                          v.                                     BLAS CAMILO,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Lynch, Circuit Judges.                                           ______________                                _____________________               Michael  J.  Iacopino, with  whom  Timothy  I. Robinson  and               _____________________              ____________________          Brennan, Caron, Lenehan & Iacopino were on brief for appellant.          __________________________________               Jean B.  Weld, Assistant  United States Attorney,  with whom               _____________          Paul M.  Gagnon,  United  States   Attorney,  was  on  brief  for          _______________          appellee.                                 ____________________                                  December 18, 1995                                 ____________________                    TORRUELLA,  Chief  Judge.     Defendant-appellant  Blas                    TORRUELLA,  Chief  Judge.                                ____________          Camilo  ("Camilo") appeals his sentence of 96 months given at his          resentencing hearing of May 2, 1995.  In United States v. Camilo,                                                   _____________    ______          30  F.3d 126 (1st Cir. 1994), this court affirmed his convictions          for violations  of 21 U.S.C.    841(a)  and   846  pursuant to  a          final  judgment entered on January 3, 1994 by the district court,          and  remanded for  the resentencing  that is  the origin  of this          appeal.  For the reasons set forth below, we affirm.                                      BACKGROUND                                      BACKGROUND                                      __________                    The  facts,  which  are  derived from  the  presentence          investigation  reports  as  well  as  the  oral  and  documentary          evidence introduced at the sentencing and resentencing  hearings,          are as follows.                    Camilo was  indicted with two co-defendants  on July 2,          1993.   He was charged in count one with conspiracy to distribute          cocaine base (or "crack") in violation of 21 U.S.C.   846, and in          counts  two and three with distributing cocaine base on April 22,          1993 and  May 12, 1993, in  violation of 21  U.S.C.   841(a)(1).1                                        ____________________          1  Section 841(a)(1) provides that:                      Except as authorized by  this subchapter,                      it  shall  be  unlawful  for  any  person                      knowingly or intentionally--(1) to .  . .                      distribute .  . . or possess  with intent                      to .  . . distribute  . . .  a controlled                      substance . . . .          Section 846 provides that:                      Any person who  attempts or conspires  to                      commit  any  offense   defined  in   this                      subchapter [including    841(a)(1)] shall                      be subject to the same penalties as those                                         -2-          On October 4, 1993, Camilo pled guilty to count three pursuant to          a  written plea agreement, and counts one and two were dismissed.          For count three, Camilo was  sentenced on January 3, 1994 to  ten          years  of  imprisonment and  five  years  of supervised  release.          Camilo appealed this sentence,  and on August 8, 1994,  the Court          remanded this  case for resentencing pursuant to the agreement of          both parties at oral argument, based primarily on a change in the          sentencing recommendation  policy of the United  States Probation          Office pertaining to   841(b) penalties.  See 21 U.S.C.    841(b)                                                    ___          (specifying penalties for 21 U.S.C.   841(a) violations).  In the          wake of United  States v.  Darmand, 3  F.3d 1578,  1581 (2d  Cir.                  ______________     _______          1993),  the Probation  Office  accordingly recommended  that  the          mandatory minimum sentences  under 21 U.S.C.   841(b)(1) be based          only  on  the  drug  quantities  involved  in   the  offenses  of          conviction.                    At Camilo's  resentencing hearing  on May 2,  1995, the          district  court  assessed  Camilo  with two  additional  criminal          history points because, at the time that he committed the instant          offense,  he  had  an  outstanding Massachusetts  warrant  for  a          probation violation.   Camilo challenges this  decision as error.          Additionally, Camilo argues that because cocaine powder and crack          are   scientifically  identical,  the  United  States  Sentencing          Guidelines' ("the Guidelines'") distinction between the two forms                                        ____________________                      prescribed    for   the    offense,   the                      commission of which was the object of the                      attempt or conspiracy.                                         -3-          of  cocaine  produces  statutory ambiguity.    Therefore,  argues          Camilo,  under the rule of lenity,2 he should receive the lighter          penalty for  cocaine powder rather  than the heavier  penalty for          crack,   the  substance  which  he   was  in  fact  convicted  of          distributing.                                      DISCUSSION                                      DISCUSSION                                      __________                    A.  The Criminal History Computation                    A.  The Criminal History Computation                    We review  a district  court's legal  interpretation of          the Guidelines de novo,  United States v. Fontana, 50 F.3d 86, 87                         _______   _____________    _______          (1st Cir. 1995);  United States v.  Ovalle-M rquez, 36 F.3d  212,                            _____________     ______________          221 (1st Cir. 1994),  cert. denied, 115 S. Ct. 1322,  131 L.Ed.2d                                _____ ______          202  (1995), and  its  fact-bound determinations  of  defendant's          actions with respect to the offense for clear error.  Fontana, 50                                                                _______          F.3d at 87;  Ovalle-M rquez, 36  F.3d at 225.   Furthermore,  the                       ______________          government carries the burden  of showing the facts necessary  to          justify  additional criminal  history points.   United  States v.                                                          ______________          Roberts, 39 F.3d 10, 13 (1st Cir. 1994).          _______                    The  Guidelines   specify  that,  in   determining  the          Criminal  History Category,  the sentencing  court shall  add two          points  to  a  defendant's  criminal  history  category  "if  the          defendant committed the instant  offense while under any criminal          justice sentence, including probation."  United States Sentencing                                        ____________________          2  The rule of lenity mandates the resolution of ambiguities in a          criminal statute  favorably to the  defendant.  United  States v.                                                          ______________          Gibbens, 25 F.3d 28, 35 (1st Cir. 1994); United States v. O'Neil,          _______                                  _____________    ______          11 F.3d 292, 301 n.10 (1st Cir. 1993).  The  rule is a background          principle  which casts the decisive  vote when all  else fails to          bring  sufficient lucidity  to the  meaning  of a  penal statute.          Gibbens, 25 F.3d at 35.          _______                                         -4-          Commission,  Guidelines  Manual,     4A1.1(d)  (1994).    Section                       __________________          4A1.2(m) defines  the effect under    4A1.1(d) of  an outstanding          warrant for a probation violation as follows:                      For  the  purposes   of     4A1.1(d),   a                      defendant who commits the instant offense                      while  a violation  warrant from  a prior                      sentence   is    outstanding   (e.g.,   a                                                      ____                      probation, parole,  or supervised release                      violation warrant) shall be deemed  to be                                         ______________________                      under a criminal justice sentence for the                      _________________________________                      purposes  of  this   provision  if   that                      sentence is otherwise countable,  even if                      that sentence would  have expired  absent                      such a warrant.            4A1.2(m) (emphasis added); see also   4A1.1(d), comment.  (n.4)                                       ________          (explaining the effect of a violation warrant "[f]or the purposes          of  [  4A1.1(d)]" in language almost identical to the above block          quote).                    We  conclude, and  Camilo  does not  dispute, that  the          sentence  of two  years' probation  which the evidence  shows was          imposed on him on  June 28, 1989 was "otherwise  countable" under            4A1.1(d).3  Section 4A1.1(d) specifically  includes "probation"          as a  "criminal justice  sentence" triggering the  additional two          points.  Furthermore,    4A1.2(m) clearly  indicates that, for             4A1.1(d)  purposes, an  outstanding  violation warrant  is to  be          considered the equivalent of  the criminal justice sentence under                                        ____________________          3  The words "otherwise countable" in   4A1.2(m) appear to  refer          exclusively  to the  fact  that certain  enumerated offenses  are          excluded  for the  purposes  of    4A1.1(d).   These  exceptions,          explained in    4A1.2(c)-(j),  do not apply in the  instant case.          See,  e.g.,       4A1.2(c)  (entitled   "Sentences  Counted   and          ___   ____          Excluded");    4A1.2(i) ("Sentences  resulting from  tribal court          convictions  are  not  counted");     4A1.2(j)  ("Sentences   for          expunged convictions are not counted").                                         -5-          which  it  issued, even  if  that sentence  would  otherwise have          expired absent such warrant.                    Given the clarity of the relevant Guidelines, the issue          would  seem to  hinge simply  on whether  an  outstanding warrant          existed, and  the evidence supports the  district court's finding          that it did.   Sufficient evidence supports the district  court's          conclusion that the outstanding warrant in question was issued on          May  2, 1991, almost  two months before  Camilo's probation would          have expired.   However, Camilo argues that  the required inquiry          is  not so simple.  First, citing precedents from other circuits,          he contends that the government must show  that, under the law of          the prior sentence's origin (here, Massachusetts), the warrant is          not stale and  the issuing court  retains jurisdiction to  revoke          the  defendant's probation.  See  United States v.  Lee, 941 F.2d                                       ___  _____________     ___          571,  572-73 (7th  Cir. 1991)  (discussing Missouri  law); United                                                                     ______          States v. Baty,  931 F.2d  8, 10-11 (5th  Cir. 1991)  (discussing          ______    ____          Texas  law).   Second, Camilo  asserts that,  under Massachusetts          law,  the outstanding  warrant  was invalid  for  the purpose  of          additional criminal history points, because the government failed          to present evidence  that it made reasonable  attempts to execute          the warrant.                    We reject Camilo's proposition, which he contends to be          the law in the  Fifth and Seventh Circuits, that  the Guidelines'          otherwise unambiguous direction  is necessarily  qualified by  an          additional showing under  state law.   We decline  to follow  the          cited  cases because both cases were decided before the effective                                         -6-          date  of Amendment 381 to the Guidelines, November 1, 1991, which          added both    4A1.2(m),  discussed above,  and    4A1.1, comment.          (n.4).4  See  USSG App. C, pp. 261-62, 264  (Nov. 1994); Lee, 941                   ___                                             ___          F.2d  at 571  (decided  August 26,  1991);  Baty, 931  F.2d  at 8                                                      ____          (decided  April  26,  1991).    Not  surprisingly,  neither  case          mentions either   4A1.2(m) or   4A1.1, comment. (n.4), which were          to become effective on November 1 of 1991, the year in which both          cases were decided.  Lee, 941 F.2d at 571; Baty, 931 F.2d at 8.                               ___                   ____                    Instead, we follow the reasoning of a case not cited by          either  party, United States v.  Renfrew, 957 F.2d  525 (8th Cir.                         _____________     _______          1992).  In  that case, the Eighth  Circuit stated that whether  a          defendant  was under a criminal justice  offense was ultimately a          matter of federal law:                      Although  we  agree  that  state  law  is                      relevant to the  question before us,  our                      ultimate  task  is  to determine  whether                      [the  defendant]  was 'under'  a criminal                      justice  sentence  for   purposes  of                          4A1.1(d).   That is a question of federal                      law.          Id.  at  526-27   (affirming  the  addition  of   two  points  to          __          defendant's  criminal history  category based  on either  or both          Minnesota law and    4A1.1(d), comment. (n.4)).  In  Renfrew, the                                                               _______          Eighth Circuit  determined that regardless of  whether it focused                                        ____________________          4  We note  in passing that Shepard's Citation  Service indicates          that Baty has only  been cited by Lee,  and Lee in turn  has been               ____                         ___       ___          cited by  only one  other case,  United States  v. Davis, 797  F.                                           _____________     _____          Supp.  672,  675-76  (N.D. Ind.  1992)  (undertaking Lee-directed                                                               ___          state law inquiry into outstanding warrant and finding under that          rubric that the instant  defendant's outstanding warrant sufficed          under    4A1.1(d) for  additional  two-point penalty  in criminal          history computation).                                         -7-          on   Minnesota  state   law   or  on   a  Sentencing   Commission          "postsentence clarifying  amendment,"  see    4A1.1(d),  comment.                                                 ___          (n.4), the  defendant was under  a criminal justice  sentence for          the purposes of   4A1.1(d).5                    Unlike  the  defendant  in  Renfrew,  however, Camilo's                                                _______          sentencing date, as well as his offending conduct, was subsequent          to  November 1,  1991, the  effective date  of both     4A1.1(d),          comment.  (n.4) and 4A1.2(m).   As we have  previously noted, the          language  of   4A1.2(m) that  is relevant to  our analysis almost          perfectly replicates  that of    4A1.1(d), comment.  (n.4), which          was  relied upon by  the court in  Renfrew.  Unlike  the court in                                             _______          Renfrew, we face no ex post facto problem in following   4A1.2(m)          _______          rather than the    4A1.1(d),  comment. (n.4).6   See 18 U.S.C.                                                              ___          3553(a)(4)  (courts should  consider  the kinds  of sentence  and          sentencing range  specified by the Guidelines "that are in effect          on the date  the defendant is  sentenced"); U.S.S.G.    1B1.11(a)          (courts  are to use "the Guidelines  Manual in effect on the date                                        ____________________          5  Renfrew, 957  F.2d at 527 ("[W]hether  we focus on  [Minnesota             _______          law on  revocation of  probation] or the  Sentencing Commission's          interpretation  [in    4A1.1(d), comment.  (n.4),] of  the phrase          'under any criminal justice sentence,' we think it clear that the          district  court  was correct  in adding  two points  to Renfrew's          criminal history category calculation under   4A1.1(d)."), citing                                                                     ______            4A1.1(d), comment. (n.4).            6   There is a  possible explanation, admittedly  not included in          either  amendment 381's  text  or its  accompanying statement  of          purpose, for why   4A1.2(m) repeats almost verbatim the  language          of    4A1.1(d), comment.  (n.4).   The Sentencing  Commission may          have  intended   the  application   note  as  a   post-sentencing          clarifying  amendment to guide  courts reviewing sentences handed          down  before  November  1,  1991,  while     4A1.2(m), an  actual          Guideline,  was intended to compel  the result we  reach here for          sentences dating from after November 1, 1991.                                         -8-          that the defendant is sentenced").  Most importantly,    4A1.2(m)          is not an application note but a Guideline definition; as such it          is  not merely persuasive, but  is in fact  binding authority for          our interpretation of   4A1.1(d).                    Given  that  the  plain   language  of     4A1.2(m)  is          mandatory for our purposes,  and that both federal and  state law          analyses lead us to  the same conclusions, we therefore  need not          determine  here which analysis --  federal or state  -- is indeed          required.  Thus, as the court in Renfrew did before us, we follow                                           _______          both lines of analysis without determining whether the state  law          inquiry is mandatory.                    We turn first  to federal law.  As  a matter of federal          law,  it  may be  argued  that  a delay  in  the  execution of  a          violation  warrant  may be  so  unreasonable  that the  defendant          cannot  be said  to  be under  a  criminal justice  sentence  for          purposes  of    4A1.1(d).7   We need  not decide  whether such  a          reasonableness requirement exists in this  case, however, because          under the  facts of this case  it would not benefit  Camilo.  The          argument  described  above would  not  apply where  the  delay is          attributable in significant part  to the defendant's own wrongful          actions.   Cf. United  States v. Fisher,  895 F.2d 208,  211 (5th                     ___ ______________    ______          Cir. 1990); United States v. Hill, 719  F.2d 1402, 1405 (9th Cir.                      _____________    ____                                        ____________________          7  It has been  held that jurisdiction over a  probation violator          in the federal system generally does not extend indefinitely once          a valid warrant is issued.   See United States v. Hill,  719 F.2d                                       ___ _____________    ____          1402, 1404 (9th Cir. 1983).  Due process  requires that a warrant          for a  probation violation be  executed within a  reasonable time          after  issuance.   See id.  at 1405.   A similar  requirement may                             ___ ___          exist under   4A1.1(m).                                         -9-          1983)  (considering  it  important  that the  defendant  had  not          contributed to the delay).  As the record shows, such is the case          here.                    After Camilo was defaulted  on his probation in January          1991,  notice  of  surrender  was  sent  to Camilo's  last  known          address,  42  East  Haverhill  Street,  Lawrence,  Massachusetts,          informing him of  a March 27,  1991 probation violation  hearing.          That hearing was  continued until May 2, 1991.   It is undisputed          that Camilo  failed to show up  for the May 2,  1991 hearing, and          the  district  court properly  found that  he  had notice  of the          hearing.   Camilo  also failed  an April  17, 1991  court-ordered          urinalysis and was  ordered to pay the testing  fee and to report          for another urinalysis at the testing site.  He failed to show up          for the second urinalysis.  When the warrant was issued following          the May 2, 1991 default, the Essex County Probation Office, which          still  had  an  address for  Camilo  in  Lawrence, forwarded  the          warrant  to  the   Lawrence  Police  Department  for   execution.          However, Camilo  had moved  to Salem,  New Hampshire  sometime in          1990  but had  never notified the  Essex County  Probation Office          that he had left the state.  During this time Camilo also  used a          number  of  aliases,  including "Chicky,"  "Angel  Castillo," and          "Blas Alberto Camilo Caraballo."   The facts of record  show that          Camilo simply made himself scarce during the time the warrant was          outstanding.  For these reasons, therefore, Camilo cannot benefit          from any putative staleness of the warrant.  See Fisher, 895 F.2d                                                       ___ ______          at 211; Hill, 719 F.2d at 1405.                  ____                                         -10-                    Even assuming that such an inquiry is necessary, Camilo          also cannot avail himself of  Massachusetts state law.  Recently,          the  Supreme Judicial Court recently stated  that, in the context          of determining the  fairness of the  revocation of a  defendant's          parole,  one consideration is  "the extent  to which  the parolee          reasonably relied on the  inaction of the enforcing authorities."          In  re Zullo,  653 N.E.2d  150, 152,  420  Mass. 872,  876 (Mass.          ______ _____          1995).  As noted  above, Camilo could not reasonably  have relied          on  the  inaction of  the enforcing  authorities.   He  failed to          appear at  a hearing of which  he had notice.   Moreover, his own          actions in  leaving the state  without notification and  in using          aliases  thwarted the  Essex  County Probation  Office's and  the          Lawrence Police Department's attempts to contact him.                    Upon  review  for clear  error,  we  conclude that  the          district court  received sufficient evidence to  find that Camilo          had a probation violation warrant outstanding.  Under our de novo          review of the Guidelines,  we hold that regardless of  whether we          must  focus on    4A1.2(m)  or Massachusetts  state law,  we must          affirm the district court's criminal history computation.                    B.  The Distinction Between Crack and Cocaine Powder                    B.  The Distinction Between Crack and Cocaine Powder                    Camilo  also argues  that the  district court  erred in          denying  his motion  for a  downward departure  pursuant  to USSG            5K2.0 and 18 U.S.C.   3553(b).  Camilo's argument comprises two          parts, each of which is essential to success.  First, he contends          that the  district court  improperly construed its  discretion to          depart  downward, and  thus its  decision  to deny  the departure                                         -11-          should be subject to  plenary review on appeal.8   Second, Camilo          contends that a departure was warranted because the United States          Sentencing  Commission (the  "Sentencing  Commission") failed  to          comply  with  its  enabling  legislation9  by adopting  Congress'          previously   established  100-to-1   ratio  in   the  Guidelines'          mandatory  minimum penalties for cocaine distribution, U.S.S.G.            2D1.1, without fully  investigating the circumstances  underlying          the ratio.                    However,  we  need  not  dwell on  the  first  part  of          Camilo's argument.  Even  assuming, arguendo, that plenary review          applies,  we reject  the  equally crucial  second  part.   Camilo          asserts  that a  recently  released Sentencing  Commission report          disapproving the  100-to-1 ratio  constitutes  a tacit  admission          that  the Sentencing Commission was derelict in its duty.  United                                        ____________________          8  See United States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994)             ___ _____________    _______          (noting that appellate jurisdiction may attach if it appears that          the  failure  to  depart  stemmed  from  the  sentencing  court's          mistaken impression that it lacked the legal authority to deviate          from  the  Guideline  range   or,  relatedly,  from  the  court's          misapprehension of the rules governing departures); United States                                                              _____________          v.  Rivera, 994  F.2d  942, 951  (1st  Cir. 1993)  (stating  that              ______          "[p]lenary review is appropriate where the question on review  is          simply whether or not  the allegedly special circumstances (i.e.,          the reasons for departure) are of the 'kind' that the Guidelines,          in principle, permit the  sentencing court to consider  at all");          cf. United  States v.  Pierro, 32 F.2d  611, 619 (1st  Cir. 1994)          __  ______________     ______          (noting  that "[i]t is by now axiomatic that a criminal defendant          cannot  ground an  appeal on  a sentencing  court's discretionary          decision not to depart below the Guidelines sentencing range.").          9   Camilo  cites "21 U.S.C.    941,  et seq."  as the Sentencing                                                _______          Commission's enabling legislation, but in fact there is currently          no statute at  that citation.   However, 28  U.S.C.    994(c),(d)          mandates   that  the   Sentencing  Commission,   in  establishing          categories  of offenses  for  use in  the Guidelines,  consider a          number of  factors that would  apply to the  100-to-1 ratio.   28          U.S.C.   994(c),(d).                                         -12-          States  Sentencing Commission,  Special Report  to the  Congress:                                          _________________________________          Cocaine and Federal  Sentencing Policy (February 1995).   In that          ______________________________________          report,  the  Sentencing  Commission  "firmly concludes  that  it          cannot recommend  a ratio  differential as  great as the  current          100-to-1 quantity  ratio."   Id.  at  196.   Furthermore,  Camilo                                       ___          bolsters this  argument by noting that  the Sentencing Commission          voted  on April 13, 1995,10  to eliminate the  distinction in the          Guidelines between "crack" and  "powder" cocaine, and recommended          to  Congress that  it  revise the  statutory penalty  distinction          between the  two forms  of cocaine.   See  60  Fed. Reg.  25,074,                                                ___          25,075-76 (1995).  The  Sentencing Commission concluded that "the          [G]uideline provisions, as amended, will better take into account          the increased  harms associated with some  crack cocaine offenses          and,  thus, the different offense levels based solely on the form          of cocaine are not  required."  Id.  Camilo  asserts that because                                          ___          "crack" and "powder" cocaine are "synonymous"  in the  scientific          and  medical communities  (his prospective  defense witness  is a          medical doctor),  the  Guidelines' distinction  between  them  is          ambiguous, and  therefore the  rule  of lenity  mandates that  he          receive  the lesser penalty.  For legal support, Camilo relies on          United States v.  Davis, 864 F. Supp. 1303, 1309 (N.D. Ga. 1994).          _____________     _____          On  these grounds,  argues Camilo,  the district  court  erred by          denying his "Motion for Services Other than  Counsel" and "Motion                                        ____________________          10   See 28 U.S.C.   994(p) (providing that Sentencing Commission               ___          amendments  are to  take effect  upon a  certain date,  unless an          intervening Act of Congress rejects them).                                           -13-          to Continue," thereby precluding  Camilo from presenting evidence          that "cocaine" and "cocaine base" are scientifically identical.                    For  two reasons,  we  reject the  contention that  the          Sentencing  Commission's  acts  or  omissions  compel a  downward          departure  for Camilo, and thus  we also reject  any argument for          expert testimony based on this theory.  First, the rule of lenity          argument fails for essentially the same  reason that this circuit          previously  rejected  the  argument  that  scientific equivalence          requires  that crack  offenders be  given the  same sentences  as          those  who   traffic  in  cocaine  powder.     United  States  v.                                                         ______________          Singleterry, 29 F.3d 733,  740 (1st Cir. 1994).   In Singleterry,          ___________                                          ___________          we  concluded  that  health  effects  notwithstanding,  crack  in          reality does  differ from  cocaine powder, not  least importantly          because its cheaper unit price could radically  increase drug use          absent  stiffer  penalties  for crack  distributors.    Id.   The                                                                  ___          similar  medical  effects from  crack and  cocaine powder  do not          compel  a finding of  legal ambiguity, especially  where there is          evidence of differing effects on society.                    Second, in light of recent legislative developments  we          conclude that  the Sentencing Commission  cannot be said  to have          failed  in  its statutory  duty  to  investigate the  distinction          between  crack and cocaine powder.  In response to the Sentencing          Commission's April  13, 1995  vote, the House  of Representatives          joined the Senate  on October  18, 1995 in  voting to retain  the          current  mandatory  sentence  for  possession  of crack  cocaine,          maintaining  disparate sentences  for  crack and  powder  cocaine                                         -14-          possession.   See  Pub. L. No.  104-38,    1, 109  Stat. 334, 334                        ___          (1995).  And on  October 30, 1995, the President signed this bill          into law.  Id.  These actions preempt the Sentencing Commission's                     ___          April  13, 1995  decision  to eliminate  the distinction  between          crack  and cocaine powder from taking effect on November 1, 1995.          See 28 U.S.C.   994(p).  In light of the October rejection of the          ___          Sentencing  Commission's April  amendment, we  cannot  accept the          argument  that the Sentencing Commission was derelict in its duty          to weigh penalties.11                    Accordingly,  we find  no  abuse of  discretion in  the          district court's  decision not to  grant a continuance  to permit          the presentation  of live  testimony on the  crack-cocaine powder          issue.   See United States v.  Claudio, 44 F.3d 10,  16 (1st Cir.                   ___ _____________     _______          1995) (reviewing for abuse of discretion district court's refusal          to postpone  sentencing to  allow defendant's submission  of live          medical testimony).                    The judgment of the district court is affirmed.                                                          affirmed                                                          ________                                        ____________________          11    Because Camilo  was  sentenced in  May  1995,  we need  not          confront  any issue  of  pre-February 1995  Sentencing Commission          failure to investigate.                                         -15-
