Is there an equal protection challenge to the underlying statute and guidelines regarding the criminal code for the possession of crack cocaine?

Haynes and Rose further insist that the harsher penalties for crack cocaine--compared to simple cocaine--crimes is a proper basis for displacement of the guidelines. Expressly disavowing an equal protection challenge to the underlying statute and guidelines--recognizing it would be futile, see United States v. Pineda, 847 F.2d 64, 65 (2d Cir.1988) (per curiam ); United States v. Cyrus, 890 F.2d 1245, 1248 (D.C.Cir.1989)--they insist nevertheless that because most crack users are African-Americans--while most cocaine users are white--the enhanced crack penalties unfairly punish African-Americans and should be a ground for downward departure. This speculative contention is meritless.

A downward departure may not be predicated on the fact that penalties for cocaine crack are more severe than those involving cocaine. A departure on such basis is not permitted because the enhanced penalties for crack reflect a rational and specific congressional aim of deterring drug transactions involving crack. The purpose is obvious--crack cocaine is the most addictive and destructive form of cocaine, and because it is also cheaper it is more widely available and has had therefore a corresponding increase in usage. See United States v. Reina, 905 F.2d 638, 640 (2d Cir.1990); United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir.1987) (per curiam ), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). Hence, the harsher penalties for crack crimes present no basis for downward departure.