IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-31095
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRIN D. PLAIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 95-CR-47
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October 23, 1996
Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Darrin D. Plain challenges his sentence arising from his
conviction for distribution of cocaine base, arguing that there
is no scientific basis for making a distinction between cocaine
and cocaine base at sentencing. He argues that the applicable
sentencing provisions are ambiguous because they treat the two
substances differently and, therefore, that the rule of lenity
should have been applied by the district court at sentencing.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 95-31095
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Plain also argues that the sentencing statute is ambiguous
because it does not clearly define the meaning of “cocaine base.”
This court has rejected the argument that scientific
evidence concerning the similar properties of cocaine and cocaine
base render the statutory penalties for cocaine base and cocaine
offenses sufficiently ambiguous to warrant the application of the
rule of lenity. See United States v. Flanagan, 87 F.3d 121, 123-
24 (5th Cir. 1996); United States v. Lampkin, No. 95-30131 (5th
Cir. Aug. 25, 1995) (unpublished). We have also previously
determined that the sentencing statute is not constitutionally
infirm because it does not define the meaning of cocaine base.
See United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1991),
cert. denied, 502 U.S. 1038 (1992).
AFFIRMED.