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No. 96-1289 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Michael Freeman, * * [UNPUBLISHED] Appellant. *

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Submitted: July 23, 1996

Filed: August 28, 1996 ___________

Before FAGG, BOWMAN, and HANSEN, Circuit Judges. ___________

PER CURIAM.

Michael Freeman appeals the forty-month sentence imposed by the District Court1 after he pleaded guilty to conspiring to distribute and possess with intent to distribute cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994). We affirm.

At sentencing, Freeman objected to his offense-level calculation, which was derived from the penalty scheme set forth in 21 U.S.C. § 841(b)(1), providing the same penalties for given amounts of crack and 100 times greater amounts of powder cocaine (the 100-to-1 ratio). Freeman's objection was premised on Congress's rejection of a proposed amendment to the Sentencing Guidelines (Amendment 5) which would have eliminated the 100-to-1 ratio and equalized the penalties for crack and powder cocaine.

1 The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri. Freeman argued the 100-to-1 ratio had a disproportionate adverse effect on African-Americans, Congress's rejection of Amendment 5 evidenced a discriminatory purpose on Congress's part in maintaining the penalty scheme, and thus, continued application of the penalty scheme violated his Fifth Amendment equal protection and due process rights. The District Court overruled Freeman's objection, and he appeals. We rejected the challenge Freeman raises here in United States v. Carter, No. 96-1329, 1996 WL 453275, at *2-*3 (8th Cir. Aug. 13, 1996) (per curiam).2

Accordingly, the judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

2 We do not reach the government's argument that Freeman lacks standing to raise this challenge because he is a caucasian.

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