IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-60131
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
L.C. LEWIS,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:94-cr-88-BN
- - - - - - - - - -
(October 19, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
L.C. Lewis challenges the sentence he received after he
pleaded guilty to distributing one ounce of cocaine base, in
violation of 21 U.S.C. § 841(a)(1). According to Lewis there is
no scientific distinction between cocaine base and cocaine
powder, and, therefore, no reason for an enhanced penalty.
The disparate sentencing provisions for crack cocaine and
cocaine powder in the sentencing guidelines do not violate
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-60131
-2-
constitutional due process guarantees. United States v. Thomas,
932 F.2d 1085, 1090 (5th Cir. 1991), cert. denied, 502 U.S. 1038
(1992). This court noted that Congress was entitled to treat the
two substances differently because they are different chemical
substances that are prepared for use in different manners. Id.;
United States v. Galloway, 951 F.2d 64, 65 (5th Cir. 1992).
"[T]he fact that crack cocaine is more addictive, more dangerous,
and can therefore be sold in smaller quantities is reason enough
for providing harsher penalties for its possession." United
States v. Watson, 953 F.2d 895, 898 (5th Cir.), cert. denied, 504
U.S. 928 (1992). Thus, the district court did not incorrectly
apply the guidelines.
Lewis's argument that the rule of lenity should apply to his
sentence because Congress did not define cocaine base is also
foreclosed by existing case law. In Thomas, 932 F.2d at 1090,
the court proclaimed: "We also reject the contention that [§ 841]
is infirm because it does not define the term `cocaine base.'"
Lewis's argument that the court should look to a purported
amendment to the guidelines which does away with any distinction
between cocaine base and cocaine powder is likewise without
merit.
This appeal borders on being frivolous. Counsel cites no
cases in this Circuit to support any of his arguments. In fact,
two of his arguments are foreclosed by existing Fifth Circuit
case law, which he fails to acknowledge. Additionally, this
court will not apply a purported proposed amendment to the
guidelines that has yet to take effect. And yet, counsel
No. 95-60131
-3-
requests oral argument to expound his groundless contentions.
Counsel is cautioned that he is subject to sanctions and has a
duty not to bring frivolous appeals. See United States v.
Burleson, 22 F.3d 93, 95 (5th Cir.), cert. denied, 115 S. Ct. 283
(1994).
AFFIRMED.