United States v. Beafore

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5167
ANTWAN BEAFORE, a/k/a Doc,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5294
PERCY LEE MOORE, a/k/a Face, a/k/a
Larry Curry,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-94-10084)
Submitted: December 14, 1995
Decided: January 5, 1996
Before ERVIN, Chief Judge, and WIDENER and WILKINS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thomas W. Kupec, MICHAEL & KUPEC, Clarksburg, West Vir-
ginia; Thomas G. Dyer, WATERS, WARNER & HARRIS, Clarks-
burg, West Virginia, for Appellants. William D. Wilmoth, United
States Attorney, Sam G. Nazzaro, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Antwan Beafore pled guilty to conspiracy to distribute cocaine
base (crack) and possess cocaine base with intent to distribute, 21
U.S.C.A. § 846 (West Supp. 1995), and also pled guilty to being a
felon in possession of a firearm, 18 U.S.C.A. § 924(c) (West Supp.
1995). He was sentenced to 100 months imprisonment. Percy Lee
Moore pled guilty to possession of 15.4 grams of cocaine base (crack)
with intent to distribute, 21 U.S.C.A. § 841 (West 1981 & Supp.
1995). Both Beafore and Moore challenge the district court's refusal
to find § 841 unconstitutionally ambiguous and to apply the rule of
lenity by sentencing them under the lower penalties for cocaine
offenses rather than the penalties for offenses involving cocaine base.
Finding no error, we affirm the sentences.
In the district court, Beafore and Moore proffered a transcript of
the expert testimony presented in United States v. Davis, 864 F. Supp.
1303 (N.D. Ga. 1994). They asked to court to follow Davis by finding
that cocaine and cocaine base are synonymous terms referring to the
same substance and to find that § 841(b) is ambiguous because it pro-
vides lower penalties for offenses involving cocaine than for offenses
involving cocaine base. Moore also argued that the heightened penal-
ties for cocaine base violate the Equal Protection Clause. Relying on
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prior Fourth Circuit precedent, the district court found that the statute
was not ambiguous or otherwise unconstitutional.
Since Moore and Beafore were sentenced, we have considered and
rejected the holding in Davis and reaffirmed prior decisions of this
court rejecting equal protection challenges to § 841(b). See United
States v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, ___ U.S. ___,
64 U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923). Moore and
Beafore contend in their reply brief that Fisher does not address their
argument that § 841(b) is logically inconsistent because cocaine
(penalized in clause (ii) of § 841(b)(1)(B)) contains pure cocaine or
cocaine base (penalized in clause (iii) of the statute). We find that
Fisher does address and resolve this issue, finding that "a common
sense reading of [the statute] eliminates the ambiguity" claimed to
exist. Id.
The sentence imposed by the district court is therefore affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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