regarding the disparity between punishments for crack and powder cocaine is not a ground for departure under the Guidelines is distinguishable. E.g., United States v. Andrade, 94 F.3d 9, 14-15 (1st Cir.1996); United States v. Sanchez, 81 F.3d 9, 11 (1st Cir.1996); United States v. Camilo, 71 F.3d 984, 990 (1st Cir.1995) ("In light of the October rejection of the Sentencing Commission’s April amendment, we cannot accept the argument that the Sentencing Commission was derelict in its duty to weigh penalties.”); see also United States v. Martin, 221 F.3d 52, 58 (1st Cir.2000) (stating that "departures (up or down) based on the inherently speculative possibility that the guidelines might under other circumstances be modified are impermissible”); cf. Franklin, 2005 WL 1330959, at *1 n. 1 (<HOLDING>). Furthermore, while this Court rejects the
holding that crackpowder disparity was constitutional stating that ujntil the en banc court of this circuit the us supreme court or congress itself accepts this assertion of disparity and finds it untenable challenges to the sentencing guidelines based on the disparity between sentences for crack cocaine and powder cocaine will continue to fail holding that while tenth circuit had specifically and clearly held that crackpowder disparity was not valid basis for departure district court was free to consider this disparity in determining sentence postbookerfanfan holding that the trial judge may consider the crackpowder cocaine disparity in determining whether in the particular case a withinguidelines sentence is greater than necessary to serve the objectives of sentencing holding that sentencing disparity between crack and powder cocaine is constitutional holding that the district courts failure to give consideration to the sentencing disparity that would result was another reason the defendants sentence was unreasonable