must “(1) normally determine the applicable Guidelines range, (2) consider the Guidelines along with the other factors under § 3553(a), and (3) determine whether to impose a Guidelines sentence or a non-Guidelines sentence.” United States v. Villafuerte, 502 F.3d 204, 206-07 (2d Cir.2007); accord Gall, 552 U.S. at 53, 128 S.Ct. 586. There is no dispute that the district court judge correctly determined the Guidelines range. It is the second step, the consideration of the § 3553(a) factors, specifically of § 3553(a)(6), that is at issue. Appellant is correct insofar as he asserts that a Guidelines sentence can create an unwarranted disparity, a proposition supported by the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 91, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (<HOLDING>). However, the district court judge’s
holding that a judge may consider the disparity between the guidelines treat ment of crack and powder cocaine offenses in deciding upon a sentence holding that district court did not err in determining that cocaine base was crack cocaine based on chemical analysis identifying cocaine base together with competent lay testimony bridging the evidentiary gap between cocaine base and crack cocaine and refusing to require showing of smokeability ie water solubility or melting point for purposes of establishing crack cocaine under the guidelines since smokeability distinguishes cocaine base from powder cocaine not from crack holding that sentencing disparity between crack and powder cocaine is constitutional 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 no unconstitutional infirmity exists in the sentencing guidelines treatment of crack visavis powder cocaine