UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5689

KEITH DOSS FENTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-94-189)

Submitted: March 21, 1996

Decided: April 4, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles D. Luckey, BLANCO, TACKABERY, COMBS & MATA-
MOROS, P.A., Winston-Salem, North Carolina, for Appellant. Wal-
ter C. Holton, Jr., United States Attorney, Benjamin H. White, Jr.,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Keith Doss Fenton entered a guilty plea to one count of distributing
crack cocaine, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995), and
was sentenced to a term of 70 months imprisonment. He appeals his
sentence, alleging that the district court failed to appreciate its author-
ity to depart below the guideline range. We affirm.

At sentencing, Fenton urged the district court to depart to the man-
datory minimum sentence of 60 months. He argued that the Sentenc-
ing Commission's 1995 proposal to eliminate the 100-to-1 ratio for
crack and powder cocaine sentences revealed that the Commission
had not adequately considered the unfairness of the ratio when the
guidelines were initially formulated. See United States v. Hummer,
916 F.2d 186, 192 (4th Cir. 1990) (departure possible if mitigating
circumstance not adequately considered under guidelines), cert.
denied, 499 U.S. 970 (1991). The district court found that the crack
sentencing scheme had been considered and reconsidered by the Sen-
tencing Commission. The court declined to depart.

A decision not to depart is normally not reviewable on appeal,
United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498
U.S. 819 (1990). However, when a court bases its decision on a per-
ception that it lacks the legal authority to depart, that legal decision
is reviewed de novo. United States v. Hall, 977 F.2d 861, 863 (4th
Cir. 1992). Fenton argues on appeal that the district court did not rec-
ognize its authority to depart and thus failed to exercise its discretion.

If we assume from the district court's statements that the court
believed it could not depart on the ground urged by Fenton, we find
no error. The principal sentencing guideline for drug offenses, USSG
§ 2D1.1,* incorporates the penalty structure set out by Congress for
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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crack and cocaine offenses. 21 U.S.C.A. § 841 (West 1981 & Supp.
1995). Congress has rejected the Sentencing Commission's sugges-
tion that the guideline be amended so as to deviate from that penalty
structure. Because Congress has reaffirmed the current penalty struc-
ture, the Sentencing Commission's recommendation to change the
penalties for crack offenses is not a factor which warrants a departure
from the current guideline. See United States v. Booker, 73 F.3d 706,
710 (7th Cir. 1996).

We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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