United States v. James Easter, Jr.

SOUND, B. LANSING JAMES

INC., Plaintiff-Appellant, FIRE INSURANCE UNION

NATIONAL PITTSBURGH, PA., a OF COMPANY corporation,

Pennsylvania Defendants

-Appellee. 84-6630.

No. Appeals, Court

United States

Ninth Circuit. 11, 1992.

Dec. SCHROEDER, GOODWIN,

Before:

BOOCHEVER, Judges. Circuit OPINION AMENDING

ORDER enti- the above hereby ordered that

It is Cir.1986) be at 801 F.2d case

tled column, 8th first page amended inserting the “not” before word

line “substantially.”

word America,

UNITED STATES

Plaintiff-Appellee, Jr., EASTER, Defendant-

James

Appellant.

No. 91-6103. Appeals, Court of Circuit.

Tenth

Dec. OK, City, Kirk, Jr., Oklahoma B.

Frank defendant-appellant. Leonard, Atty., Leslie U.S. Timothy D. Atty., Oklahoma Kaestner, Asst. M. OK, plaintiff-appellee. City, con- ANDERSON, against Defendant. Alexander was SEYMOUR, Before participation her in California for Judges.* victed BALDOCK, Circuit also testified at Defen- the offense and BALDOCK, Judge. Circuit trial. con- appeals his Easter James charged in a four count Defendant was following jury ver- and sentence viction charged Count indictment. conspiracy and substantive dict on various possess intent to conspiracy to with with posses- relating distribution and charges conspiracy to co- distribute distribute jurisdiction We have of cocaine base. sion 21 U.S.C. 846. Count caine base. and 18 U.S.C. under 28 U.S.C. § Defendant with unlawful travel charged 3742(a)(1). promote intent to commerce with interstate Defen- originates from prosecution This 1952(a)(3)and illegal activity. 18 U.S.C. §§ Admin- by Drug Enforcement arrest use charged Defendant with Count 3 (DEA) an Okla- officials outside istration telephones conspiracy. to facilitate a of the hotel room. Prior to City, homa Oklahoma 843(b). charged De- Count U.S.C. § room, the hotel Fen- arrival at Defendant’s in- possession unlawful with fendant with pos- had arrested Alexander been etrius approximately one kilo- to distribute tent kilogram one of approximately session of 841(a)(1); base. Id. gram of cocaine § Angeles Interna- at the Los cocaine base 2. U.S.C. § agreed then to Airport. Alexander tional trial, Defendant was Following jury made a agents DEA and cooperate with appeal, four counts. On convicted on all to delivery of the cocaine base controlled (1) following issues: Defendant raises the Defendant, City. in Oklahoma her contact denying erred in his mo- the district court accompanied to the hotel was Alexander hearing evidentiary and new tions for an agents, City by DEA room in Oklahoma bias; (2) the admission juror on trial based video, placed under au- the room was and under Fed.R.Evid. prior of acts evidence dio, Alexander personal and surveillance. (3) 404(b) his sentence vio- improper; was arranged to then contacted Defendant Amendment; (4) 21 U.S.C. lates the Eighth Defendant him meet her at the room. have 841(b)(1) 2D1.1 U.S.S.G. are void § § designated hotel room where arrived at 841(b)(1) vagueness; and 21 U.S.C. from Alexan- he received the cocaine base equal protec- 2D1.1 and U.S.S.G. violate room, he was imme- der. When he left the principles. tion agents. DEA diately arrested cooperate with law agreed Defendant I. officials, Ro- and he contacted enforcement the source Piggee, derick later identified as juror of Defendant’s claim bias Piggee directed De- of the cocaine base. allegation that after the on his based the co- fendant deliver nine ounces of verdict, recognized its his sister returned Kirksey. Defen- caine base to Lamonte jurors as a school bus driver one of the Kirksey appeared dant then contacted who to and from had driven who room, at the monitored hotel same school, high time in his life junior at a base, the cocaine and was his share of being “unruly.” Defendant admits to when Piggee later ar- promptly arrested. was then, for the first Defendant claims he Rogers Airport World rested at Will time, recognized juror and made mo City. Oklahoma hearing in evidentiary an order tion for juror question particular interview or Piggee plea guilty of and is entered a potential toward conviction and sen- about bias currently appealing his Defen alleged prior on the contact. Kirksey signed plea agreement based tence. under for a new trial trial dant also moved and testified at with * submitted without argument therefore is ordered parties agree is unneces- The case that oral sary may argument. on the and the case be submitted oral 34(f); Fed.R.App.P. 10th Cir.R. 34.1.2. briefs. her verdict on ing had not based that she de he was alleging that Fed.R.Crim.P. in the case. testimony key of witnesses jury. The impartial fair and of a prived charge re held that We We both motions. denied court district juror’s letter on the misconduct based of discretion. for an abuse view allegation that did to a “thin” Ware, amounted hearing. evidentiary not warrant Cir.), cert. (1990); Likewise, post-verdict claim Defendant’s pure is based on juror misconduct possible A. recog- juror may have conjecture that a may have based nized Defendant Defendant’s address We first than the evidence something other vote deny erred court district claim here allegations him. Defendant’s before hearing evidentiary for an his motion ing than those Cattle “thinner” are even bias. juror allegation based district conclude bias, King. We juror a claim with confronted When for an motion of Defendant’s court’s denial in decid wide discretion court has trial an abuse of hearing evidentiary was proceed. how ing Cir. discretion. Bradshaw, ordinary course is to

1986). Although the into nonfrivo inquiry hearing or a require B. misconduct, Unit juror of allegations lous district that the also contends Defendant F.2d 604 Ramsey, 726 ed States a new his motion for denying court erred not Cir.1984), inquiry is war an (10th such juror allegation of the same on trial based jury of only allegations “thin when ranted disagree. We bias. United States present. are misconduct” Co., 793 F.2d Packing juror mis King A new trial based Cattle denied, Cir.), 479 is (10th only where there appropriate cert. is conduct (1986). circum showing bias or S.Ct. a of actual either inherent imputation of “compel an stances Defendant’s denying In its order of law.” a matter juror as to the bias hearing, the dis evidentiary for an motion (quoting Bradshaw, allega Defendant’s that court found trict States, 418 F.2d v. United Williams a full warrant insufficient were tions case, Cir.1969)). In (10th the instant alleged bias. juror’s the investigation into by the express admission no there was any of record devoid the court found The he even or that he biased juror that was knew or even juror the that indications Moreover, Defen recognized Defendant. Defendant, further noted recognized juror deliber allege that the not dant does gave any indication juror never to con concealed, any motive or had ately unwilling to remain or he was unable with Defendant. ceal, contact previous numerous in the court’s despite impartial Perkins, F.2d United States ability to remain fair jury’s quiries into Cir.1984) (bias presumed where (11th to the con evidence impartial. Absent prior business intentionally concealed juror remain true jurors presume that trary, we Defendant). Defendant relationship with conscientiously observe their oath and require that would allege any facts fails of the and admonitions instructions actually or juror was finding that a Greschner, 802 United States court. reasons, For these biased. presumptively cert. dismissal court’s district affirm the 1353, 94 L.Ed.2d 523 908, 107 new trial. for a motion Defendant’s Co., Packing King In Cattle II. to conduct refusal court’s the trial affirmed dis challenges the also possible hearing based evidentiary mis motion for his denial of trict court’s despite post-conviction misconduct acts prior on the admission trial based counsel stat- juror to defense from a letter 404(b). prior in re- The acts evidence in the Fed.R.Evid. We under evidence stant case satisfies the Huddleston test.2 of discretion. United abuse view for previously recognized highly have Record, “We uncharged prior value of acts Cir.1989). probative motive, intent, knowledge evidence to show government’s case ? plan conspiracy pros or in the context of a court, Defendant’s chief, over the district Record, 873 F.2d at This ecution.” evidence of Defendant’s objection, admitted uncharged pri- especially true where the with cocon- dealings in cocaine base prior or acts are close time and similar in dating to the Alexander back spirator charged conspiracy. to the method Initially, the district court Spring of 1990. Bridwell, (citing “part the con the evidence allowed (10th Cir.1978)). Here, Defen frame;” however, the time spiracy within uncharged prior only acts occurred recess, renewed noon after the prior few months to the date of the indict stating that the evidence was objection ment, coconspirators, involved one of his material,” 404(b) and he mo “arguably of cocaine and involved distribution base— hearing After from for a mistrial. tioned the same scheme with which Defendant was the evidence context, eventually charged. was In this 404(b) and that there was proper evidence prior highly acts evidence is relevant to denied Defendant’s prejudice, no the court plan pos show Defendant’s or scheme to of the rec After a careful review motion. Further sess distribute base. ord, clearly the evidence is we find that more, prior acts evidence tends to re 404(b).1 under Fed.R.Evid. admissable fute Defendant’s claim at trial that he did 404(b) admissability evidence is bag he know was arrested in guided by Supreme Court’s decision the contained cocaine with base. 681, States, 485 v. U.S.

Huddleston United (1988). Furthermore, highly probative In 99 L.Ed.2d 771 the 108 S.Ct. Huddleston, explained substantially the Supreme the Court value of evidence was not prejudice outweighed by potential prej its for unfair protection that from unfair (1) 404(b) comes from: Rule udice. While the district court did not ex evidence 404(b)’s pressly probative the the requirement preju that evidence be rule on versus (2) evidence, implic proper purpose; Rule dicial value of the it did so offered for a (3) requirement; itly by denying Rule 403’s Defendant’s motion for mis relevancy 402’s probative hearing government’s value of the requirement that the trial after the state substantially outweighed concerning prejudice. ment evidence not be See United prejudice; and by potential Fingado, its for unfair 934 F.2d 1165-66 — (10th Cir.), denied, U.S. -, requirement Rule that the trial court cert. 105’s shall, (1991). instruct the that upon request, 116 L.Ed.2d 262 Due to give is to considered the the similar acts evidence be substantial deference we to a trial only proper purpose ruling, for which it court’s Rule 403 for the see United States 691-92, (10th Cir.1990), at at Keys, was admitted. Id. 108 S.Ct. 899 F.2d Record, 873 F.2d at 1373- not 1502. also we will disturb this determination. See Moreover, that 76. we note Defendant 404(b) (1986), provides: 1. Federal Rule of Evidence 106 S.Ct. 88 L.Ed.2d 889 we re- government crimes, quired the and the trial court to wrongs, Evidence of other or acts is specifically identify purpose prove for which the not admissible to the character of a person conformity in being in order to show action evidence is offered and the connection however, may, be therewith. It admissible purpose. the evidence and that In Rec- between motive, purposes, proof such for other as ord, however, if the basis for we held even intent, plan, opportunity, preparation, knowl- articulated, specifically been admission has not edge, identity, or absence of mistake or acci- pur- long proper the error is harmless as as a dent. pose apparent is from the record. 873 Kendall, 7. 1375 n. In United States 2. (10th Cir.1985), cert. investigation prosecu- or in the objection at trial. assistance a Rule to raise failed committed person another who has tion of Esparsen, 930 See offense, depart may the court down- de cert. 1461, 1476 n. 18 — guidelines.” U.S.S.G. from the ward -, nied, 5K1.1. that the § conclude We L.Ed.2d its not abuse discretion court did

district argument Defendant’s evidence.3 acts admitting prior down depart be permitted should court from without a motion under 5K1.1 ward § III. light holding of our government fails Horn, in United States that his sen- contends next Defendant Horn, (10th Cir.1991). In we held that the The Eighth Amendment. violates tence government for a that the move condition claim, as we under- of Defendant’s essence 5K1.1 does not offend under reduction § First, ar- Defendant it, is twofold. stand equal protection. nor process due assis- he rendered substantial gues power under government’s arrest of a in the government tance govern from the is no different 5K1.1 § should have the court coconspirator, and authority over what exclusive ment’s his judicial take notice permitted to been charge bring or whether charges to his imposing when assistance substantial (citing at all. Id. defendant Second, argues that sentence. Gardner, Cir. of his disproportionality sentence Horn, ar 1991)). Defendant’s first As sentences compared merely calling for a reallocation gument is un- cruel and constitutes coconspirators, sentencing process, a call in the power find Defendant’s We punishment. usual constitutionally required merit. arguments without heard. id. will not be therefore sug argument also Defendant’s A. gov challenge the he seeks to gests that arrest, agreed to Upon his failing to for a move motives ernment’s by per- and did so assist may not a court While 5K1.1 reduction. the hotel for a Kirksey to come to suading 5K1.1 under guidelines sentence reduce agents monitored federal deal while motion, Horn, 946 government absent a thereupon arrest- Kirksey was room. the 746, not with may government the F.2d trial, all of Defendant’s By the time ed. constitutionally for a such a motion hold Kirksey, including coconspirators, other v. United impermissible Wade reason. offenses, or lesser of convicted had been — 1840, U.S. —, 118 States, 112 S.Ct. offenses, and lesser guilty to pled had (1992). Defendant’s exercise 524 L.Ed.2d against testified Kirksey and Alexander jury to a trial right his constitutional only cocon- was the Defendant. govern for the improper an basis be would Defen- jury trial. request a to spirator a motion. to withhold ment months, was 235 sentence guideline Nevertheless, did sentence of longest the he claims that district in the argument raise this years.4 not five coconspirators was his any of sentencing reviewed we have While provide that court. Guidelines Sentencing district in the not raised stating errors that were the “upon motion of standard, United plain error under a provided substantial court has defendant the any of the script to find mention and are unable does not requirement of Huddleston The final 3. coconspira- by Defendant’s failed received as Defendant sentences apply inasmuch in this case limiting may the use of to entertain Although decline request a instruction tors. to the prior argument acts due to this absence evidence. Defendant’s 247, Jordan, record, 890 States see United any in the basis to cite factual Defendant fails assuming Cir.1989), ar- (10th proceed 254 longest sen- that the contention record longest received sentence guendo coconspirator was five by a tence years. years. coconspirators was five Defendant's Further, trial tran- we have reviewed 1556 — (10th Orr, Michigan, Harmelin v. U.S. —, —, appro- 2680, 2707, (1991) error review is not plain S.Ct. alleged error involves

priate J., when (Kennedy, concurring). Within this limi United disputes. See of factual resolution tation, penalty properly determinations are Saucedo, 1518-19 States v. Congress United legislature. left to or the Cir.1991). ap- Plain error review is Hughes, in- appeal from a trial propriate “only — denied, Cir.), U.S. —, cert. 111 S.Ct. judge ‘plain’ so the trial error fected with (citing L.Ed.2d 128 derelict in countenanc- were prosecutor Gourley, States v. 252-53 Frady, States v. ing it....” (10th Cir.1987), cert. U.S. 1584, 1592, 152, 163, 102 S.Ct. U.S. (1988)). 108 S.Ct. 100 L.Ed.2d 204 sug- (1982). It is to untenable L.Ed.2d prosecutor was court or gest .that a trial alleged Defendant has not alleged failing recognize an “derelict” grossly disproportionate his sentence is raised, factual issues never error based his crimes. This is the critical factor in sugges- Defendant’s litigated. much less assessing, dispro a sentence whether is so government’s motive for regarding tion portionate as to constitute cruel and unusu bring motion raises the factual failing to — Harmelin, See punishment. al U.S. at motive, of, only government’s issue —, J., (Kennedy, 111 S.Ct. at 2707 con provided in fact the Defendant but whether Nonetheless, curring). even if Defendant Accordingly, assistance. be- substantial properly alleged Eighth had Amend failed to raise this fact- cause Defendant claim, proportionality ment it would fail. below, in the court he has dependent issue Supreme Five members of Court have plain error appeal, it on review waived agreed pos that a sentence of life without Saucedo, See apply. does not sibility parole possession of 650 1508.5 grams of cocaine base did not violate the — Harmelin, Eighth Amendment. B. U.S. —, Scalia, (opinion 111 S.Ct. 2680 Defendant’s second regard In J.); J., id. See also (Kennedy, concurring). Eighth requires argument, Amendment Davis, Hutto v. 370, 372-73, 454 U.S. grossly dispropor that a sentence not be 703, 704, (1982) (forty 70 L.Ed.2d 556 Helm, the crime. Solem v. tionate year possession sentence for with intent to 77 L.Ed.2d 637 marijuana distribute nine ounces of did not Eighth review of an Amend Our Eighth Amendment). violate It therefore claim proportionality ment must consider pos follows that a 235 month sentence for gravity the offense and the harsh “the kilogram session with intent to against distribute penalty” ness of the and insure Solem, Eighth of cocaine base does not violate gross disproportionality. 3009-10; see also Amendment. 290-91, at 103 S.Ct. at — nom., U.S. —, States, Contrary suggestion 5. the dissent's that we Rison v. United 112 randomly "picking choosing" among 1233, (1992) (defendant’s and are S.Ct. 117 L.Ed.2d 467 Defendant’s claims to address on the which of merits, failure to raise Fourth Amendment issue below forego addressing decision to our Hart, appeal); waived issue on United States v. improper motive claim is merits of Defendant’s 662, (10th Cir.1984), denied, 729 F.2d 665 cert. interpretation applicable of the based on our 1161, 914, 469 U.S. 105 S.Ct. 83 L.Ed.2d 927 improper sig motive claim is law. Defendant's nificantly (1985) (defendant’s failure to raise Miranda is from his other claims—the different appeal). sue below waived issue on We address despite do address merits of which we Defen Defendant’s other claims because we have a to raise them below—in that De failure however, where, here, record; sufficient as improper fact-depen- motive claim is fendant’s challenge fact-dependant there is a and an insuf have no record to review in this dant and we record, we, ficient in the exercise of our discre regard. Challenges made for the first time on tion, refuse to do so. See United States v. Chea appeal automatically plain merit error do not 165, ma, (10th Cir.1986) (whether 168 they simply raise constitutional review because decided below is within consider issues not Dewitt, issues. See United States v. F.2d 946 discretion). our sound 1497, (10th Cir.1991), cert. denied sub 1501-02

1557 2D1.1 are not unconstitu- and U.S.S.G. § IV. face tionally vague void on their for and the first argues for Defendant the term “cocaine base.” failing to define 841(b)(1) 21 U.S.C. appeal § time unconstitutionally are 2D1.1 and U.S.S.G. § vague penal A is void for statute failing to void vague and therefore (1) criminal if it: “define the ness fails Because base.” “cocaine the term define with sufficient definitiveness offense [so] issue below this to raise failed what ordinary people can understand error. To consti plain only for review we prohibited,”. v. Law conduct is Kolender error, deficiency must be plain tute 357, 103 1855, 1858, 352, son, S.Ct. 461 U.S. fun and affect and substantial obvious (1983), or it fails L.Ed.2d 903 75 integrity fairness, reputation, or damental govern guidelines to minimal “establish Jefferson, v. States the trial. United of arbitrary as to invite so enforcement” law Cir.1991). (10th How 1242, 1254 925 at Id. discriminatory enforcement. and less rule plain error ever, apply the (quoting 1858 Smith 103 S.Ct. at constitu reviewing potential rigidly when 566, 574, 94 S.Ct. 415 U.S. Goguen, Id. error. tional (1974)). Vagueness 1248, 39 L.Ed.2d 605 of Anti-Drug Abuse Act In the the First Amend challenges implicating not 841(b)(1)to 21 U.S.C. Congress amended § light of the facts must be examined ment narcotic penalties for for enhanced provide at hand. States the case United specified amounts involve offenses Mazurie, S.Ct. 95 99-570, See P.L. substances. controlled (1986). As a re 1002(2), 100 Stat. § corresponding Sen 841(b)(1) sult, and § sentencing guide and statute 2D1.1, impose Guideline, U.S.S.G. tencing make it line, dispute, does not as Defendant for offenses greater penalty substantially cocaine, trafficking in no matter clear that offenses than for involving cocaine base form, in punishment. result will what salts, and “cocaine, optical its involving Therefore, Hawkins, F.2d at 854. Van isomers, isomers.” and salts of geometric that traf person is on notice ordinary 841(b)(1).6 In United States U.S.C. cocaine, as co such ficking in a form Cir.1991), (10th Turner, base, Id. Sec prohibited conduct. caine cocaine-to- resulting 100-to-l upheld provision merely penalty 841(b)(1).is tion against a due sentencing ratio base cocaine change elements does such approval quoted challenge and with process offenses, it trafficking rather that have other circuits cases from those Congress has penalties lengthens the provi statutory guideline upheld Unit those offenses. already imposed at challenges. against vagueness sions (6th 1026, 1033 Levy, 904 Jackson, ed States States v. also United — U.S. —, denied, Cir.1990), cert. Cir.1992); (2nd United F.2d 158 (1991). That 974, 112 Cir.1990); L.Ed.2d Avant, F.2d 623 expose sentencing guideline Hawkins, statute 899 F.2d the Van States v. penalties based to enhanced Cir.1990); defendants make does not factors significant (1st legally cert. Barnes, id. vagueness. See void for statute 108 the dispute Here, does not (1990); v. 1033. L.Ed.2d was a possessed he Cir.1989); substance that Williams, 1521 therefore, 21 U.S.C. cocaine; Brown, F.2d 974 form 859 2D1.1 are 841(b)(1) U.S.S.G. and § cir Today, join those (D.C.Cir.1988). § to the vague applied as unconstitutionally 841(b)(1) 21 holding that U.S.C. in § cuits sentencing scheme incorporated the same example, has 841(b)(1), for mandates 6. Section gram of cocaine grams equating 1 involving guidelines, 50 into the offenses same sentence for involving U.S.S.G. grams See does for offenses of cocaine. base it 100 of cocaine as base to (5 Id. kilograms) of grams 2D1.1(c)(3). cocaine. 5000 § Sentencing 841(b)(1)(A). Commission § 1558 Indeed, chemical for cocaine failing give notice formula case for this facts of C17H21NO4, is while the formula for prohibited. is base conduct as to what C17H21NO4HCL, hydrochloride is cocaine alleges that the statute also in Turner supporting statement thus our vagueness be- void guideline are and distinguishing factor of cocaine cocaine failure define Congress’ cause hydrochloric is the absence of acid. base arbitrary enforcement of has led to base Jackson, provisions. Defen- penalty the enhanced See also The Merck (2nd Cir.1992). 161 claims because specifically dant Chemicals, Encyclopedia An Index: sentencing guideline fail statute Biologicals Drugs, and 1989). ed. guidance sufficient give the of their different chemical com- As result is cocaine whether substance determine hydro- cocaine positions, cocaine base and hydrochloride, the sub- cocaine versus base physical properties, chloride have distinct arbitrarily classi- possessed was stance he melting points, including different solubili- cocaine base. fied as levels, weights. ty and molecular involving statutory In all cases Jackson, 161; Turner, 968 F.2d at point starting must be construction “our Index, supra, The Merck 1; at 960 n. by Congress.” language employed physical chemical and 383. Due to these Patterson, Tobacco Co. American differences, qualified an individual 63, 68, 102 1534, 1537, 71 L.Ed.2d S.Ct. U.S. skill, knowledge, experience, training, or Reiter Sonotone (quoting distinguishing capable education is be- Corp., 330, 337, 99 S.Ct. Jackson, compounds. tween the two Moreover, (1979)). L.Ed.2d 931 161; Turner, 928 F.2d at 960 n. 1. contrary, the ordi to the absent evidence Accordingly, hold that “cocaine base” is expresses used nary meaning of the words sufficiently distinguishable defined Richards (citing legislative intent. prevent other forms of cocaine to from States, 1, 9, 369 U.S. enforcement.7 arbitrary discriminatory Congress (1962)). L.Ed.2d When Jackson, 968 F.2d at 162. art, terms of technical words or has used case, DEA present In the chem given its technical or the term must be in Defen ist testified that substance meaning. Coming Glass Works scientific possession was cocaine base. Ac Brennan, 188, 201, witness, cording expert the “wet to that 2223, 2231, 41 L.Ed.2d 1 gooey cream color substance” found De as “a com A is defined “base” possession was a common form fendant’s alka alkali, (a lime, or an pound a caustic and could be sold of crack or cocaine base loid) reacting with an acid to capable of up. as is dried out and cleaned Defen or ...” Webster’s Third New form a salt presented to refute the dant no evidence Dictionary, (3rd

International ed. testimony makes expert’s conclusion. This added). 1981) Accordingly, (emphasis it clear that the substance Defendant's the statute indicates that plain language of arbitrarily possession was not classified the alkaloid form of cocaine cocaine base cocaine base. capable reacting with an acid to which is recognized as much form a salt. We V. Turner, stating that “cocaine base is the Finally, for the by removing an acid Defendant asserts precipitate formed acid) appeal pen the enhanced (e.g. from a salt form first time on hydrochloric involving only alty for offenses cocaine (e.g. hydrochloride), leaving scheme 841(b)(1) by base, provided 928 F.2d at n. 1. U.S.C. the basic cocaine.” history Congress history legislative legislative indicates While the of 21 U.S.C. 841(b)(1) Congress amended indicates that limited to crack intended "cocaine base" to be Jackson, over the increas- the statute due to its concern ing Buckner, F.2d at 162. There- cocaine. See cocaine, v. abuse of crack see United States fore, language plain of the statute controls. the Cir.1990), (8th nothing in true, assertion, if would ing Easter’s 2D1.1, constitution- offends U.S.S.G. and relief, none- majority the state a claim for guarantees. equal protection al it, citing refuses to consider United theless likely pos- to more are argues that blacks Saucedo, 950 F.2d v. States who are whites than cocaine base sess Cir.1991). (10th hydrochlo- cocaine likely possess to more continues, Therefore, argument his ride. view, distinguishable my In this case is posses- for sentences lengthier providing holding upon which from Saucedo. identical for an than base sion only to majority relies was addressed the violates hydrochloride of cocaine amount concerning applica- the dispute factual “[a] the under equal protection right to id., guideline,” bility particular of a plain constitutional for We review laws. possibility raise the does not issue which Jefferson, error. See right. a deprivation of constitutional the Cir.1991). alleges that contrary, Easter Here to the 5K1.1 a 841(b)(1) government withheld section and the concedes constitutionally impermissible for a their face motion neutral on 2D1.1 are U.S.S.G. § reason, right jury to a the exercise of his guideline the statute argues that but majority opin- in As stated both trial. impact blacks.8 disproportionate on a have Saucedo, apply plain in a ion and law has However, if a neutral “even reviewing a rigidly when rule less upon a error adverse effect disproportionately error. potential constitutional See under minority, it is unconstitutional racial only if that Equal Clause Protection discriminatory to a can be impact traced Saucedo, being controlled Instead of Feeney, Adm’r purpose.” Personnel therefore, case falls I the instant believe 256, 272, 99 S.Ct. holding in our under pre- has (1979). Defendant L.Ed.2d 870 (10th Cir.1986), in Cheama, Congress or either no evidence sented con- fact-dependent addressed which we adopted the Sentencing Commission the first challenge raised for stitutional fur- to penalties cocaine base severe more review Rather than refuse appeal. time purpose. discriminatory racially ther for deprivation constitutional a serious sentencing Therefore, the cocaine base record, remanded adequate anof lack basis subject only to rational scheme facts. development of the further for Davis, 426 Washington review. a limited remand for Similarly, I would govern- claim that Easter’s hearing on analysis in Unit- rational basis Our 5K1.1 to make a section refusal ment’s Turner, ed States his decision for was in retaliation reduction reject to Defen- us requires recited From the facts jury trial. seek a to claim. appears that it majority opinion, in AFFIRMED. way much the same in cooperated Easter leading au- Alexander, a role in played concurring SEYMOUR, Judge, Circuit source, drug Piggee, thorities dissenting. Alexan- culpable than either more was no in enough These facts are Kirksey. or opin- der majority join I otherwise While an inference to raise my in view case, concur unable to am in this I ion reduce to move government’s failure gov- contends that Easter IIIA. Part cooperation on his based sentence motion Easter’s improperly withheld ernment decision for Easter’s in retaliation 5K1.1 was section under his sentence reduce addition, partici- the other trial. In go to constitu- of his for the exercise retaliation allegedly pled, all of whom recogniz- pants, trial. While right to a tional co- possession of arrested of those 79.6% vague cited in a statistics relies 8. Defendant Russell, that, See State powder white. Supreme were Court caine case Minnesota recent (Minn.1991). n. arrested Minnesota N.W.2d of those 96.6% black, and base were possession of cocaine months to five ranging from six sentences Easter, nineteen and had who was

years. history, to trial and went prior criminal

no years. twenty almost a sentence Cheama, I believe these circum-

Under remand on this issue. warrant

stances majority’s refusal by the troubled

I am only one of three merits of

to address appeal, time on for the first raised

issues raises a conceding that the claim

despite contrast, In issue. constitutional

valid other the two consider majority elects to appeal first time on

claims raised for Because the merits. rejects them on pick and choose majority’s decision supported by the is not

among these claims relies, it and because

authority upon which claim, hearing this authority supports

other dissent. respectfully

I must America, STATES

UNITED

Plaintiff-Appellee, ANDERSON, Cordova, Phillip

James T. Salinas, Defendants-

and Jon Gerald

Appellants. 91-2238, 91-2247 and 91-2260.

Nos. Appeals, Court of

Tenth Circuit.

Dec.

Case Details

Case Name: United States v. James Easter, Jr.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 10, 1992

Citation: 981 F.2d 1549

Docket Number: 91-6103

Court Abbreviation: 10th Cir.