United States v. Maples, K.

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 9/3/96
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
vs. (Consolidated)
No. 95-3216
KRISTEN M. MAPLES,

Defendant-Appellant.
_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
vs. No. 95-3217

MICHAEL TODD MAPLES,

Defendant-Appellant.

_________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
vs. No. 95-3247

JAMES M. SIMPSON,

Defendant-Appellant.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. Nos. 94-10101-01, -02, -03)

David Lind, Assistant United States Attorney (Randall K. Rathbun, United States
Attorney and Montie L. Deer, Assistant United States Attorney with him on the brief),
Wichita, Kansas, for Plaintiff-Appellee in No. 95-3217.

Cyd Gilman, Assistant Federal Public Defender, Wichita, Kansas, for Defendant-
Appellant Michael Todd Maples in No. 95-3217.

Nos. 95-3216 and 95-3247 were submitted on the briefs.1

Montie R. Deer, Assistant United States Attorney and Randall K. Rathbun, United States
Attorney, Wichita, Kansas, for Plaintiff-Appellee.

T. Lynn Ward, Hershberger, Patterson, Jones & Roth, L.C., Wichita, Kansas, for
Defendant-Appellant Kristen Maples.

Jeff Griffith, Griffith & Griffith, Derby, Kansas, for Defendant-Appellant James Marlin
Simpson.

Before KELLY, LOGAN and BRISCOE, Circuit Judges.

KELLY, Circuit Judge.

Defendant Kristen Maples pled guilty to conspiracy to possess with the intent to

1
After examining the briefs and the appellate records in Nos. 95-3216 and 95-
3247, this three-judge panel has determined unanimously that oral argument would not be
of material assistance in the determination of these appeals. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1.9. They are therefore ordered submitted without oral argument.

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distribute cocaine base, 21 U.S.C. § 846, and possession with intent to distribute cocaine

base, 21 U.S.C. §841(a)(1), 18 U.S.C. § 2, and was sentenced to 70 months incarceration.

Defendant Michael Maples pled guilty to two counts of possession with intent to

distribute cocaine base, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2, and was sentenced to 84

months incarceration. Defendant James Marlin Simpson pled guilty to distributing

cocaine base, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2, and was sentenced to 63 months

incarceration. Defendants appeal their sentences claiming that the district court

improperly denied them downward departures pursuant to U.S.S.G. § 5K2.0. We grant

Defendants’ joint motion to consolidate and accordingly consider their appeals together.2

Discussion

We review de novo a district court’s conclusion that it is without authority to grant

a downward departure. United States v. Sanders, 18 F.3d 1488, 1490-91 (10th Cir 1994).

District courts have statutory authority to depart downward from Guideline sentences if

“the court finds that there exists . . . [a] mitigating circumstance of a kind . . . not

adequately taken into consideration by the Sentencing Commission in formulating the

guidelines that should result in a sentence different from that described.” 18 U.S.C.

§3553(b); see also U.S.S.G. § 5K2.0 (policy statement); United States v. Ziegler, 39 F.3d

1058, 1060 (10th Cir. 1994).

2
The government filed a motion to dimiss in Nos. 95-3216 and 95-3217. During
oral argument in No. 95-3217, the government withdrew the motion.

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 Defendants contend that the district erred in holding that it lacked jurisdiction to

grant them downward departures in light of the Sentencing Commission’s recent

recommendation to Congress to abolish the 100:1 sentencing differential between crack

and powder cocaine. See United States Sentencing Commission, Amendments to the

Sentencing Guidelines for the United States Courts, 60 Fed. Reg. 25074, 25075-76

(1995); Special Report to the Congress: Cocaine and Federal Sentencing Policy 195 (Feb.

1995). Absent an ex post facto problem, the district court is required to apply the

Guideline provisions in effect at the time of sentencing and, by definition, a pending

recommendation is not yet in effect. See 18 U.S.C. § 3553(a)(4)(A); United States v.

Kissick, 69 F.3d 1048, 1052 (10th Cir. 1995); United States v. Richards, 5 F.3d 1369,

1372 n.1 (10th Cir. 1993). In declining to depart downward based upon a proposed

amendment to the Sentencing Guidelines, the district court acted properly as it was

bound by statute to apply the existing Guidelines, policy statements and official

commentary. 18 U.S.C. § 3553(b); United States v. Canales, 1996 WL 435942, at * 6 (2d

Cir. Aug. 5, 1996).

Congress has now rejected the Commission's recommendation, voting instead to

preserve the higher sentences for crack-related crimes. See Pub.L.104-38, § 1, 109 Stat.

334. Accordingly, Defendants Michael and Kristen Maples’ sentences are affirmed

because the district court lacked power to depart and the sentencing disparities of the

current scheme have not only been considered by Congress and the President, but also

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retained. See United States v. Lewis, 1996 WL 406653, at * 3 (8th Cir. July 22, 1996).

Unlike Defendants Maples, Defendant Simpson did not condition his argument on

adoption by Congress of the Commission’s recommendation. Rather, Mr. Simpson

argues that the Commission’s recommendation indicates a failure to adequately consider

the differences between crack and powder cocaine when initially drafting the Guidelines

under which Mr. Simpson was sentenced. Aplt. Br. (No. 95-3247) at 8. That the

Commission recommended the elimination of the sentencing differential for crack in no

way indicates that it failed to adequately consider the differences between crack and

powder cocaine when it originally adopted the guidelines. See United States v. Ambers,

85 F.3d 173, 177 (4th Cir. 1996); United States v. Anderson, 82 F.3d 436, 440-41 (D.C.

Cir. 1996). To the contrary, the Commission in fact did consider the distinction when

formulating the Guidelines. See United States v. Alton, 60 F.3d 1065, 1068-69 (3d Cir.),

cert. denied, 116 S. Ct. 576 (1995). Furthermore, the expansive issue of appropriate

sentencing levels for crack offenses is not the sort of discrete, individual and case-specific

mitigating circumstances justifying downward departure under 18 U.S.C. § 3553(b). See

Canales, 1996 WL 435942, at * 7; United States v. Bynum, 3 F.3d 769, 775 (4th

Cir.1993), cert. denied, 114 S.Ct. 1105 (1994).

AFFIRMED.

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