UNITED STATES of America, Plaintiff-Appellee, v. James A. BERGER, Jr., Defendant-Appellant

James A. Berger, Jr. was resentenced on remand from this court, for three narcotics counts and one count of using a firearm during a drug trafficking crime. He claims the resentencing court erroneously believed it did not have the discretion to depart downward on two grounds: that his career offender classification overrepresented his criminal history, and that the sentencing guidelines for cocaine base are disproportionately harsh in comparison to those for powder cocaine. We affirm the decision not to depart downward, and we remand for vacation of a 60-month enhancement for use of a firearm.

PACTS

Jeffrey Moore made four trips to Los Angeles to pick up cocaine base from James A. Berger, Jr. The cocaine base was to be sold in Albuquerque, New Mexico. Moore conveyed the drug sale proceeds to Berger either personally or through a third person.

On a trip to Los Angeles in November 1992, Moore picked up 273 grams of cocaine base from Berger, to be sold in Albuquerque. A Drug Enforcement Administration (“DEA”) officer stopped Moore at the airport on the morning of November 18, patted him down, and found the drugs, along with a scrap of paper with Berger’s address and phone…