70 F.3d 1263

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Frederick Ricardo HARDEN, a/k/a Onion, Defendant-Appellant.

No. 95-5330.

United States Court of Appeals, Fourth Circuit.

Submitted: November 16, 1995.
Decided: November 30, 1995.

Paul M. James, Winston-Salem, NC, for Appellant. Walter C. Holton, Jr., United States Attorney, Paul A. Weinman, Assistant United States Attorney, Greensboro, NC, for Appellee.

Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

Frederick Ricardo Harden pled guilty to conspiracy to distribute crack cocaine, 21 U.S.C.A. Sec. 846 (West Supp.1995), and was sentenced to serve 75 months imprisonment. He appeals his sentence and an order of the district court denying funding under the Criminal Justice Act, 18 U.S.C.A. Sec. 3006A(e) (West Supp.1995), for expert witnesses to testify at his sentencing. We affirm both the sentence and the order denying the request for funding.

Harden sought two expert witnesses to testify, at his sentencing hearing, about the chemical properties of cocaine and cocaine base in support of his contention that Sec. 841 is ambiguous in its use of those terms, and thus requires application of the rule of lenity and a sentence under the lower cocaine penalties. Section 3006A(e)(1) provides that expert witnesses shall be obtained at government expense for an indigent defendant when the court finds their services necessary for adequate representation. Here, the district court found that the expert testimony sought was unnecessary because Supreme Court and Fourth Circuit precedent dictated its decision on the issue. We find no error in the court's decision, particularly in light of our holding in United States v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, 64 U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923), which rejected the very argument Harden makes. Harden asks us to reconsider our decision in Fisher, which we decline to do.

We therefore affirm Harden's sentence and the district court's denial of payment for expert witnesses. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED