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No. 96-2103 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. William Sellers, * * [UNPUBLISHED] Appellant. *

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Submitted: October 10, 1996

Filed: October 11, 1996 ___________

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

William Sellers, an African-American, challenges the 84-month 1 sentence imposed by the district court after he pleaded guilty to possessing cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We affirm.

At issue is Sellers's 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. Sellers argues that the 100-to-1 ratio has a disproportionate adverse effect on African-Americans; Congress's rejection of the Sentencing Commission's proposed amendment to the Sentencing Guidelines--which would have eliminated the 100-to-1 ratio and equalized the penalties for crack

1 The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. and powder cocaine--evidences a discriminatory purpose on Congress's part in maintaining the penalty scheme; and, thus, continued application of the scheme violates his Fifth Amendment equal protection and due process rights. Sellers also contends the district court erred in not departing downward under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, based on the Commission's conclusion that the 100-to-1 ratio was not justified.

We recently rejected similar arguments in United States v. Carter, 91 F.3d 1196, 1198-99 (8th Cir. 1996) (per curiam) (equal protection and due process challenges), and in United States v. Lewis, 90 F.3d 302, 304-06 (8th Cir. 1996) (downward-departure challenge).

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

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

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