United States v. Stanley Weaver, 104 F.3d 351, 2d Cir. (1996)
United States v. Stanley Weaver, 104 F.3d 351, 2d Cir. (1996)
United States v. Stanley Weaver, 104 F.3d 351, 2d Cir. (1996)
3d 351
This cause came on to be heard on the transcript of record from the United
States District Court for the Northern District of New York, and was argued by
counsel.
We also reject the contention that the court erred in denying the motion to
suppress Weaver's statement to the agents that a hard object in his pocket was
"dope." There was evidence that as he was accompanying the agents Weaver
reached with his right hand into the left side of his coat, a movement consistent
with reaching for a shoulder-holstered weapon; that upon seeing that
movement, agent Gleason yelled a warning to agent MacConaghy; and that
MacConaghy grabbed Weaver's hand and thereupon felt an object that he
believed could be a weapon. It was reasonable in the circumstances for
MacConaghy to grab Weaver's hand and conduct a security pat-down. The
district court ruled that if the sequence of events was that Weaver stated that
the object was "dope" prior to the pat-down, his statement provided probable
cause for arrest and a search; it ruled that if the pat-down preceded Weaver's
statement, the pat-down did not violate Weaver's Fourth Amendment rights
because it was a reasonable action incident to a Terry stop (Terry v. Ohio, 392
U.S. 1, 30 (1968)). Given the record, we see no error in the court's conclusions.
We also reject Weaver's challenges to his sentence. His contentions that the
more severe penalties imposed for crack offenses than for powder cocaine
offenses violate his rights to due process and equal protection are foreclosed by
prior decisions of this Court. See, e.g., United States v. Montoya, 87 F.3d 621,
623 (2d Cir.1996) (per curiam) (due process); United States v. Jackson, 59 F.3d
1421, 1424 (2d Cir.1995) (equal protection), cert. denied, 116 S.Ct. 1428
(1996). We decline Weaver's invitation to overrule those precedents on the
basis of the Sentencing Commission's 1995 recommendation for elimination of
the Guidelines' different treatments of crack and powder cocaine. Congress
considered the Commission's proposed amendments and rejected them. Given
the rulings upholding the constitutionality of the existing provisions, we have
no authority to override Congress's legislative decision. See generally United
States v. Jimenez, 68 F.3d 49, 51 (2d Cir.1995), cert. denied, 116 S.Ct. 1448
(1996).
Weaver's further contention that the district court should have granted him a
downward departure because of unfairness in the Guidelines' crack-cocaine
ratio is not properly before us. We have held that that disparity is not a proper
basis for a downward departure, see, e.g., United States v. Stevens, 19 F.3d 93,
97 (2d Cir.1994); United States v. Reina, 905 F.2d 638, 640 (2d Cir.1990), and
the district court's failure to depart on that basis is thus not appealable, see
generally United States v. Chabot, 70 F.3d 259, 260 (2d Cir.1995) (per curiam)
(refusal to grant downward departure is reviewable on appeal only if refusal
was based on a mistaken view that the district court lacked authority to depart).
Weaver also attempts to assert a pro se argument that the substance seized from
10
him was not crack. This contention, which was not a ground upon which his
plea of guilty was made conditional, was waived by the plea, and we have no
jurisdiction to consider it. See, e.g., United States v. Mann, 451 F.2d 346, 347
(2d Cir.1971) (per curiam).
We have considered all of Weaver's contentions that are properly before us and
have found in them no basis for reversal. The judgment of conviction is
affirmed.
SUMMARY ORDER
Nov. 18, 1996
11
A motion having been made herein by appellant for recall of the mandate and
permission to file a petition for rehearing out of time based on counsel's recent
discovery of Ornelas v. United States, 116 S.Ct. 1657 (1996), it is ordered that
the motion be and it hereby is denied.
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