UNITED STATES оf America, Plaintiff-Appellee, v. Shawn A. DUMAS, Defendant-Appellant.
No. 94-30313
United States Court of Appeals, Ninth Circuit
Decided Sept. 12, 1995
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Opinion by Judge THOMPSON; Concurrence by Judge BOOCHEVER.
Argued and Submitted May 1, 1995.
II.
The district court ruled on the cigarettes’ value, and adopted the retail measure—almost one million dollars. Thus, the district court satisfied
III.
Under Section 2B1.1(b)(1) of the Sentencing Guidelinеs, the offense level depends on the value of the “loss.” United States Sentencing Commission, Guidelines Manual § 2B1.1(b)(1) (Nov. 1993). The Commentary to the Guidelines defines loss as
the value of the property taken, damaged, or destroyed. Ordinarily, when property is taken or destroyed the loss is the fair market value of the particular property at issue. Where thе market value is difficult to ascertain or inadequate to measure the harm to the victim, the court may measure the loss in some other way, such as reasonable replacement cost to the victim.
The amount of the loss is a factual issue. The district court used retail value as an estimate of fair market value. We cannot say, considering the record and the underlying circumstances, that the district court clearly erred. Compare United States v. Watsоn, 966 F.2d 161, 162-63 (5th Cir.1992); United States v. Russell, 913 F.2d 1288, 1292-93 (8th Cir.1990).2
Lopez argues that the district court should have used the wholesale value because the cigarettes were packaged for shipment to Japan. However, Lopez concedes that “the market value [of the cigarettes] is indeed difficult to ascertain.” Appellant‘s Opening Brief at 18.
Moreover, the government notes that Edward Cermack, a representative of Philip Morris International, testified that the fair market value of the cigarettes was basically the retail value—$900,000 to $950,000. Although this figure may include taxes and shipping costs, this Court has previously included these amounts in the loss calculation under Section 2B1.1. See United States v. Burns, 894 F.2d 334, 335-36 (9th Cir.1990). The Commission did not intend for the district court to “pars[e] the loss figure” and break it down into its myriad components. Id. at 336.
Lopez‘s requests for court-appointed counsel and an extension of time to file a second petition for rehearing are denied.
MOTION DENIED.
Rolf H. Tangvald, Assistant United States Attorney, Spokane, WA, for plaintiff-appellee.
Before: WRIGHT, BOOCHEVER and THOMPSON, Circuit Judges.
Opinion by Judge THOMPSON; Concurrence by Judge BOOCHEVER.
Shawn A. Dumas, an African-American, appeals his sentence imposed under the Sentencing Guidelines following his conviction by guilty plea to possession of 8.8 grams of cocaine base (“crack” cocaine) with intent to distribute, in violation of
We have jurisdiction pursuant to
I
We have previously considered and rejected “as enacted” equal protection challenges to
Dumas urges us to apply strict scrutiny in this сase, and to uphold the crack/powder cocaine distinction only upon a showing that it promotes a compelling governmental interest. He correctly notes that a facially neutral law is nonetheless subject to strict scrutiny if it is an obvious pretext for discrimination. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). He аrgues the crack/powder cocaine sentencing scheme is a law infected with such pretext.
In support of this argument, Dumas offers evidence suggesting the heavy penalties for crack-related offenses disproportionately affect Blacks because Blacks are more likely to possess crack thаn Whites, who are more likely to possess powder cocaine. His evidence consists of statistics showing that Blacks comprise only 12% of the nation‘s total population, but are involved in 92% of all federal crack prosecutions. Similarly, in the Eastern District of Washington, 91% of crack cocaine prosecutions are brought against African-Americans, while less than 1% of the population is Black.
Dumas‘s statistical evidence of disparate impact has some appeal. United States v. Moore, 54 F.3d 92, 97 (2d Cir.1995) (finding similar statistics “irresistible.“). As Dumas concedes, however, in order to trigger strict scrutiny he must show more than that the crack/powder cocaine sentencing disparity has a disprоportionate impact on African-Americans. The Supreme Court has instructed that disparate impact alone is insufficient to support a finding of invidious racial discrimination in a facially neutral law. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1977). The disparate impact must be traceable to a discriminatory legislative purpose. Feeney, 442 U.S. at 272, 99 S.Ct. at 2292.1 “Discrimina-
In support of his discriminatory purpоse argument, Dumas points to the racism which permeated the legislative debates leading to enactment of the Harrison Act of 1914, the first federal law to criminalize cocaine. This argument was squarely rejected in United States v. Johnson, 40 F.3d 436, 440 (D.C.Cir. 1994), cert. denied, 514 U.S. 1052, 115 S.Ct. 1412, 131 L.Ed.2d 297 (1995).
The crack/powder cocaine sentencing distinction was adopted in 1986, with the passage of the Anti-Drug Abuse Act. The changes which occurred in American society between 1914 and 1986—changes brought about in part by successive Congresses and by the impact of the Voting Rights Act on the makeup of Congress itself—make it “anomalous” to ascribe to the 1986 Congress the racism of the Congress of 1914. Id.
With regard to the 1986 Congress, its decision to distinguish between craсk and powder cocaine for sentencing purposes was supported by available scientific evidence which suggested crack was a more harmful form of the drug. See Harding, 971 F.2d at 413-14. Dumas is correct that conflicting testimony was presented to Congress. This is a far cry, however, from saying Congress had no basis for its decision to punish craсk offenses more severely, and therefore the decision must have been racially motivated.
It is true that the Sentencing Commission has recently recommended to Congress that it reconsider the 100-to-1 sentencing ratio. This recommendation, however, was based on the fact that, since passage of the 1986 Act the distinction betwеen crack and powder cocaine has been discredited by the medical community. The medical community‘s present disagreement with earlier congressional testimony “does not establish discriminatory purpose, or for that matter, a lack of scientific support for Congress’ [earlier] action.” Clary, 34 F.3d at 714. See also Moore, 54 F.3d at 99. Moreover, the Sentencing Commission‘s report to Congress specifically states there is no evidence to support a finding that racial animus undergirded the penalty structure chosen by the 1986 Congress. See United States v. Jackson, 59 F.3d 1421, 1424 n. 5 (2d Cir.1995).
Dumas also argues the 1986 Congress’ discriminatory intent is evidenced by the hasty manner in which it adopted the crack/powder cocaine distinction. He argues the legislation was rushed through Congress in a mere five weeks, without being subjected to the regular panoply of committee hearings. He contends the original proposal, which had called for a 50-to-1 sentencing disparity, was arbitrarily doubled to emphasize congressional intent to be “tough on crime.” He argues this was a “frenzied” response to public fears spawned by rampant media reports, some of which were entered into the congressional record, regarding the nexus between crack, crime and African-Americans.
We reject this argument. As other circuits have held, “[i]t is too long a leap from newspapеr and magazine articles to an inference that Congress enacted the crack statute because of its adverse effect on African-American[s].” United States v. Clary, 34 F.3d 709, 713 (8th Cir.1994), cert. denied, 513 U.S. 1182, 115 S.Ct. 1172, 130 L.Ed.2d 1126 (1995). See also United States v. Cherry, 50 F.3d 338 (5th Cir.1995). Congress’ undeniable haste in passing the 1986 Act is as easily explained by the dangers posed by the perceived crack epidemic—and the need to take promрt action to combat it—as by discriminatory racial animus. Clary, 34 F.3d at 713; Johnson, 40 F.3d at 440; Moore, 54 F.3d at 98-99.
We are satisfied Congress was not motivated by racial animus when it enacted the crack/powder cocaine sentencing disparity. Therefore, strict scrutiny is not required. We have previously held the sentencing disparity survives rational basis review. Harding, 971 F.2d at 412-14. We therefore reject Dumas‘s contention that, as enacted, section 841(b) and § 2D1.1 violate equal protection.
II
Dumas contends that, even if the crack/powder cocaine sentencing disparity is not unconstitutional as enacted, it violates equal protection as applied because the more severe crack provisions are selectively enforced against African-American offenders. In support of this argument, Dumas again points to statistics showing that 91% of all federal crack cocaine prosecutions in the Eastern District of Washington are brought against African-Americans, who comprise only 1% of the population. He also contends White crack offenders are more likely to be prosecuted in state court, where they face less severe penalties than they would in federal court. He presents federal and state prosecution records indicating that, while 91% of federal crack prosecutions are against Black defendants, only about 67% of state crack prosecutions are against Blacks. On the other hand, White defendants are involved in 29% of state crack prosecutions, but in only 9% of federal crack prosecutions. These statistics, Dumas contends, indicate that in the Eastern District of Washington, the decision whether to prosecute a crack offender and, if so, whether to do so in state or federal court, is made on the basis of race. We disagree.
Equal protection is violated when the decision to prosecute is based upon impermissible factors such as race. Wayte v. United States, 470 U.S. 598, 609, 105 S.Ct. 1524, 1532, 84 L.Ed.2d 547 (1985). To prove selective prosecution based on race, hоwever, the defendant must show both discriminatory effect and discriminatory purpose. Id.
Dumas may have established discriminatory effect. His statistics show that crack cocaine prosecutions in federal court disproportionately impact Blacks. See United States v. Armstrong, 48 F.3d 1508 n. 1 (9th Cir.1995) (statistical disparity suffices to sat-
Dumas, however, has offered no evidence of discriminatory purpose. He argues, based on Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), that this is one of those “rare” cases in which evidence of disparate impact suffices to prove discriminatory intent. We disagree.
Unlike in Yick Wo and Gomillion, here the disparate impact is explainable on grounds other than race. See United States v. Thurmond, 7 F.3d 947, 952 (10th Cir.1993), cert. denied, 510 U.S. 1199, 114 S.Ct. 1311, 127 L.Ed.2d 661 (1994); United States v. Byse, 28 F.3d 1165, 1170 n. 8 (11th Cir.1994), cert. denied, 513 U.S. 1097, 115 S.Ct. 767, 130 L.Ed.2d 663 (1995); Johnson, 40 F.3d at 441. The government has presented evidence that the decision to prosecute a crack offender in federal court is guided by neutral criteria. These criteria include whether the drug quantity involved in the offense exceeds five grams, whether the defendant has any gang affiliation, and whether a firearm is used or is present during commission of the offense.
The government has also presented evidence that of the 27 White crack defendants who were prosecuted in state court, only one—based on the government‘s criteria—would have qualified for prosecution in federal court. On the other hand, 24 of thе Black defendants who were actually prosecuted in state court during the same period could have been prosecuted federally, but they were not. These statistics refute Dumas‘s contention that in the Eastern District of
III
We reject Dumas‘s equal protection challenges to
AFFIRMED.
BOOCHEVER, Circuit Judge, concurring.
Although I find the result in this case to be shocking, in that the punishment for the crack cocaine offense is the same as the punishment that would have been imposed for a comparable offense involving 100 times as much powder coсaine, and the evidence indicates that 92% of federal prosecutions for crack cocaine, which require the enormously higher terms of imprisonment, involve African-Americans, I am compelled to concur.
The result in this case, as in many equal protection challenges, depends on whether a rational basis оr strict scrutiny test applies. It is extremely difficult, if not impossible, to find an improper discriminatory purpose when an act has been passed by Congress, and the Supreme Court has made clear that such a high hurdle must be cleared for application of the strict scrutiny test. See, Personnel Adm‘r of Mass. v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292-93, 60 L.Ed.2d 870 (1979). If it were an open question in this circuit, one might find that the imposition of the 100 to 1 ratio with its invidious racial effects is so arbitrary and capricious as to lack a rational basis. We have resolved that issue, however, in United States v. Harding, 971 F.2d 410 (9th Cir.1992) (holding that the statutory distinction between crack and powder cocaine was rationally based on differences between the two fоrms of the drug). I note, however, that Harding did not have the statistical evidence presented in this case, and that recent studies cast doubt on the conclusion that there is a significant difference. While it may not help those in Dumas’ situation, the Sentencing Commission has recommended eliminating the sentencing disparity based on type of coсaine, and that recommendation will become law on November 1, 1995, unless other action is taken by Congress before that date. There also is pending a bill in the House equalizing the sentences for the different types of cocaine. See H.R. 1264, 104th Cong., 1st Sess. (1995). Thus, what appears to me to be an unjustified distinction with appalling racial еffects may soon be eliminated.