United States v. Sloan
97 F.3d 1378
11th Cir.
1996
Check Treatment

*2 COX, Phung, crack co- in concert with had sold Before KRAVITCH and *3 Phung’s, Ngo’s Vuong’s CLARK, Judge. caine.2 and PSRs Judges, and Senior Circuit also documented that each had distributed KRAVITCH, Judge: sentencing, government a crack cocaine.3 At expert among that testified the substances appeals, appellants In these consolidated seized in connection with the offenses of con- challenge imposed their thе sentences after cocaine, in a viction was crack cocaine base pleas guilty to violations of 21 of U.S.C. Phung, Ngo Vuong rock-like form. and did 841(a).1 Appellants argue that the rele- dispute they had distributed this Sentencing vant and Guidelines statute substance, argued but instead that there was ambiguous (“guidelines”) are because no scientific definition of cocaine and weight for “cocaine base” use a 100:1 ratio ambigu- that the scheme was too thereby punish “cocaine” offenses and and height- ous to warrant enforcement of the severely despite cocaine base offenses more ened, penalties. The district the fact that cocaine and cocaine base are objections and sentenced denied chemically synonymous. Appellants contend Phung, Ngo Vuong prison and terms of lenity apply rule of should months, respectively. 78 and 60 penalties. should receive the less severe We disagree imposed and affirm the sentences district court. II. The statute under which I. provides part in were sentenced relevant Appellant Roy pleaded guilty, in Sloan that: Florida, Middle District of to two counts of (1)(A) [drug In the case of a in- offensе] possessing cocaine base with intent to dis- volving— ... 841(a). in of 21 At tribute violation U.S.C. (ii) kilograms 5 or more of a mixture or change plea hearing, his of acknowl- Sloan containing substance a detectable amount edged pleading guilty charge he was ... of— distributing crack and he confirmed (II) cocaine, salts, optical geo- its accuracy government’s factual reci- isomers, isomers; metriс and salts ... tation which indicated he had dealt (in) grams or more of a mixture or (“PSR”) Report cocaine. His Pre-Sentence (ii) substance described clause which specific described instances which Sloan base; contains cocaine ... proposed distributed crack cocaine and it an person

imprisonment range such shall be sentenced to a term of under the us- imprisonment may ing which not be less than the offense level for cocaine base. Sloan years or more than affirmatively accepted findings life.... all the guideline applications in his and re- PSR (B) [drug In the of a in- offense] case prison. ceived 70 months in volving— ... (ii) Phung, Ngo grams Hein Van more of mixture or Vuong pleaded guilty, containing each in the Northern substance a detectable amount to, alia, Georgiа, possession ... District of inter of— that, Nguyen, Huong Ngo Vuong 1. Tai and Bao 3. The PSRs also indicated at a co-defen- trial, deportation the district court's order. Phung dant’s testified he had discussed the precluded ruling Those claims are in Unit- converting for Oboh, (11th Cir.1996) ed States v. into crack ‍​‌​​‌‌​‌​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‍cocaine with the co-defendant. (en banc). Phung's plea colloquy was recorded steno- transcribed; graphically, apparently but part it is not of the record. (N.D.Ga.1994). (II) cocaine, optical geo- F.Supp. In its isomers; isomers, government, court-appointed ... and salts defense ex- metric perts composi- testified about the chemical (iii) of a mixture or grams or more (ii) tion of cocaine-related substances. in clause substance described cases, Ngo’s Vuong’s Phung’s, the dis- base; ... contains cоcaine court, by parties, adopted trict consent of the person shall be sentenced to term transcript Davis and heard further ex- may not than imprisonment which be less pert testimony Drug Enforcement years.... than 40 years and not more Administration chemist. added). (emphasis 21 U.S.C. provide weight a 100:1

guidelines also III. effectively punishes “cocaine ratio which *4 severely than “cocaine” bаse” offenses more following The establishes record 2D1.1(c). § Neither offenses. See U.S.S.G. C17H21NO4, compound, facts: the chemical statute, guidelines in nor the effect when naturally occurs in the coca It leaf. is occurred, define “cocaine” or these crimes pro “base” because it reacts with acids to 4 “cocaine base.” salts, thus, chemically duce and is referred to аmbigu- Appellants contend this scheme is as “cocaine” or “cocaine base.” This com “cocaine” and “cocaine base” are ous because usually pound processed importation is result, appel- chemically synonymous. As a by dissolving into the United States coca pen- argue, greater both the lesser and lants hydro paste derived from the coca lеaf in facially alty provisions apply to all cocaine- acid, HC1, water, H20, chloric and to create offenses, pursuant and to the rule of related salt, C17H22CINO4, hydrochloride, cocaine lenity,5 district court erred when it failed powder popularly known as cocaine. This punishment.6 give to them the less severe injected ingested, salt is water soluble and is claims, snorted, rely appellants or but not smoked because it decom support of these temperature transcript poses sentenc- at the same at which it primarily upon the hydrochloride ing healing evaporates. Cocaine can be held United States amended, guidelines authority, No suasive we do not find it a 4.The were effective sufficient 1, 1993, issue, resolving vember to define "cocaine base” аs basis for this difficult and there- 2D1.1(c), § D analysis "crack cocaine.” U.S.S.G. Note conduct our own fore in Section III. (defining crack as “a form of cocaine pre-1993 cocaine to 2D1.1 refer to the ver- Citations base, hy usually prepared by processing cocaine guidelines specifically sion of the unless noted. bicarbonate, usually and sodium and drochloride form”). appeаring lumpy, new in a rocklike lenity, a "will not 5. Under the rule of court applies definition of "cocaine base” interpret to in- a federal criminal statute so as minimum, mandatory drug penalty statutes. See places penalty on an individual crease the that it 375, Realpe, 37— United States F.3d Munoz — interpretation when such an can be based on no (11th Cir.1994). This amendment came into guess more than a as tо what intend- occurred, effect after these crimes but before States, 169, 178, ed.” Ladner v. United 358 U.S. appellants guidelines were sentenced. While the 209, 214, (1958). 79 S.Ct. 3 L.Ed.2d 199 sentencing generally ap at the in effect time of Clause, Const., I, ply, the Ex Post Facto Art. government contends Sloan waived 6. The being ap prohibits Sect. an amendment failing by it in the district of this issue to raise subjects person plied to a in a manner which challenge arguably subject is to court. Sloan's statutory guidelines punishment greater than or plain See United States v. Antoniet error review. prior authorized to the amendment. See ti, (11th Cir.1996) (applying plain Howard, 1504 n. United States issues). sentencing we error review to Since (11th Cir.1991). See also v. Ca United States error, otherwise, plain we find no need not macho, (11th Cir.1994) (ruling government's gov address the contention. Thе that the amendment's new definition of cocaine argues Phung's Ngo's ernment also apply retroactively). special In his base does (1) they appealed because: claims are moot concurrence, Judge upon a recent Cox relies heightened statutory penalties, not the the stiffer guide to conclude that the Second case (2) provisions; guidelines the bottom оf their cocaine lines' distinction between cocaine and statutory amendment, sen exceed the minimum base was clear rejects this narrow tences attack. The does not that the amendment Ngo appeals Phung are and finds punishment. Although view of the greater per- challenging certainly the entire scheme. Second Circuit's view constitutes ‍​‌​​‌‌​‌​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‍problem’ by enhancing ‘crack methоds. to address the back to a base several converted (1) penalties more class of requires: for the broad common dis- The most cocaine bases.” United States baking soda solving cocaine (2) To water; boiling into the mixture separate change, Congress created make this dried, resulting sub- form. solid When 841(b) (1) for: punishments within cocaine, tiers stance, commonly called crack “сocaine, geometric optical and iso- its chemical formula and has the same smoked (“clause mers, ii”); and and salts of isomers” naturally occurring base. as the (ii) (2) “described in clause substances C17H21NO4, compound, in nature or (“clause iii”). cocaine base” Con- contain[] hydrochloride, from cocaine upon conversion gress’ phrase, inclusion of the “described base, fоrms, such physical is a and its distinct ii,” iii clause within clause indicates that Con- paste as coca and crack are chemi- ii gress considered clause a re-enactment Further, substances, cally indistinguishable. preceding provision covering all catch-all hydrochloride, ultimately as cocaine cocaine-related substances and that enact- naturally occurring from thе com- derived iii, Congress single ing clause intended to out result, to “co- pound. As a the references substances, all of cocaine-related subset parts and “cocaine base” in different caine” for harsher treat- forms of create, § 2D1.1 courts *5 ment.7 See, noted, e.g., ambiguity. facial have some history motivating poli- legislative The Booker, 488, 492 States v. 70 F.3d United 841(b) § underlying support this cies Although сourts construction of the statute. conclusion, however, not This does aspects § have construed of different- application lenity. of the rule of mandate ly, this court and all other circuit courts who operation “The rule comes into at the end of that, it, have at a have considered concluded construing Congress the what has minimum, Congress amended the stat- when beginning at an expressed, not the as over penalties in ute 1986 it intended to increase riding being lenient to See, Booker, consideration e.g., offenses. cocaine States, wrongdoers.” v. United Callanan (“Congress targeting 70 F.3d at 492 587, 596, 321, 326, 364 U.S. 81 S.Ct. passed crack cocaine when it the stiffer sen- (1961). ”); court must L.Ed.2d 312 The consider tencing provisions for ‘cocaine base.’ just sentencing Fisher, 96, language the of the re United States “structure, Cir.1995) (“This gime, legislative history histo legislative but also its demon- intended, ry, motivating policies....” Congress the en- strates that with Bifulco States, 381, 387, (iii), penalize United 447 U.S. 100 S.Ct. actment of clause to more se- (1980). 2247, 2252, cocaine.”); verely involving 65 L.Ed.2d 205 violations (noting leg- 980 F.2d at 1378 statutory penalty The structure of the history on islative “focused the malevolent against appli- scheme at issue here counsels cocaine”). nature of crack lenity. cation Prior to of the rule drag penalty distribution statute included Congress’ impose intent to more se only category covering one all cocaine-related upon involving vere sanctions offenses co 841(b) ‍​‌​​‌‌​‌​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‍(as base, substances. particular, See U.S.C. caine and crack cocaine 1984). growing amended amid con- guide must also this court’s construction of guidelines’ cern over the abuse of crack Con- distinction between “cocaine” gress Although amended the law. crack co- and “cocaine base” offenses. See Munoz- base, (ruling Realpe, caine is one form of cocaine this 21 F.3d at 378 that mandato minimum, ry drug Congress penalty court has concluded that statutes and anal- “chose[] upon hydrochloride, premised assert that cocaine becausе it is an unreasonable word, salts, like all cocaine "contains" cocaine base as construction of the "contains.” Cocaine underlying building They makeup block. further ar- salts have a different chemical than co- its gue base, they that this fact means that clauses ii and iii are caine while contain all of the coextensive, therefore, base, fully up that the statute cocaine no elements make hopelessly ambiguous. argument longer fails contain cocaine base. controlling meaning pre- as a uni- as to the guidelines must be treated ogous provisions law, seek to existing they carry weight “since both fied whole some result, problem”). As a may the same ignored clearly address not be when prescribed for penalty provisions relevant.”).8 higher apрlied persons, must be Congress No doubt could have enacted a who distribute the rock- appellants, as expressed statute which its intentions more cocaine while the lesser like form of precisely, compel but that fact does not interpreted ap- penalties must be as conclusion that the statute chose to substances, such as plying to cocaine-related аmbiguous lenity enact is so that the rule of chemically distinct from which are applies. Appellants are entitled to the bene- compound. the base See United States fit of rule if their actions distrib- (2d Cir.1996) Montoya, uting a form of rock-like cocaine base were (ruling that even to the 1993 amend- 841(b)’s arguably ment there was “no doubt that the Guide- 2Dl.l(c)’s penalties. lower tier of lines’ term cocaine base included at least structure, legislative history motivating original)). Congress’ (emphasis crack” re- policies sentencing pre- behind the scheme rejection proposed guideline cent cludes such conclusion. ended the amendment which would have intent weight 100:1 ratio further confirms its that crack cocaine offenses should receive IV. guidelines, harsher treatment under the Alternatively, аppellants assert drug

well as the distribution statute. See equal pro violates scheme Canales, United States Clause, prong tection of the Due Process Cir.1996) (2d “Congress in- (observing that Const., First, they amend. contend V. [Sentencing] Commission that structed the *6 it crack treats other forms of imposed trafficking in a ‘the sentence disparately rational cocaine base without a generally quantity of сrack cocaine should This is Al basis.9 assertion without merit. trafficking imposed for exceed the sentence ” though guidelines the 1993 amendment to the (inter- powder cocaine’ in a like amount of redefined “cocaine base” as “crack co omitted)). ‍​‌​​‌‌​‌​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‍Congress’s “While nal citations caine,” that amendment went into effect after pre-existing meaning later view as Thus, the law these crimеs occurred. under does not the outcome when address- law seal case, applicable to this crack cocaine is treat ing question statutory interpretation, it a forms of cocaine base. ed the same other discounted when relevant.” should not be 980 F.2d at 1378. See Internal Reve Sorrell v. Commissioner of sentencing regime’s dis argue next that the nue, 484, 882 F.2d See tinction between cоcaine base and cocaine Internal also Johnsen v. Commissioner of Cir.1986) (6th Revenue, a rational lacks basis. 794 F.2d rejected Congress repeatedly has this claim. (“Although the views of a later race-based, equal protec- motion, Appellants’ that cocaine lacks a articulate 8. claim crack challenge. not affect these conclu- scientific definition does in that how- tion Elsewhere chemically ever, sions. cocaine can be identi- Crack appellants explicitly requested these fied as a form of cocaine ly physically distinguishable and it is sufficient- adopt reasoning court Davis, of the that the district persons, to allow conclud- Davis court. In the district court appellants, that have such as to confirm treating ed was no ratiоnal basis for there Canales, ("The at distributed it. See of cocaine base differ- cocaine and other forms ambiguous, street name 'crack' is not because F.Supp. ently. at & n. 25. See meaning ordinary has a common and that Thus, although appellants could have articulated by [appellant concededly], by oth- is understood clearly precise before the district this claim mоre trade, drug by ers in the citizens in court, my they preserved view the issue for by drug.”). plagued communities that are appeal. issue for Because we must reach this sort, any appellants some and find no error of concurrence, special Judge proposes Cox In his review, the form of there is no need to determine that we not reach this issue "because it was not presented Sloаn, admittedly any, who failed to if to which quotes to the district court.” He claim, by this is entitled. portion raise of the motion filed in district court appellants Georgia Northern District of in which sentencing provisions re- See, Terry, The federal e.g., United States Cir.1995) dispropor- garding impose a (ruling that Con- peo- upon blacks and other tionate burden base offenses for gress singled out cocaine motivаted ple of color. availability, of its treatment because harsher effects). when it enacted racial considerations cost provision enhancement for cocaine base. Accordingly, AFFIRM the sentences we constitutionally law not valid Such a is imposed the district court. narrowly tai- unless the classification government compelling lored to further a COX, concurring: Judge, sрecially narrowly tai- interest. The statute is not I, join parts II and III of the court’s irrational, I lored; arbitrary, it is instead except for footnote 4. Footnote opinion, racially motivated. and was hold, guide- not that the suggests, but does (R. 8.) on 1-171 at should not entertain We amendment effective line November not raised the district an issue “crack,” “cocaine base” as does which defines Inc., Publishing, cоurt. See Booth v. Hume my apply in this case. view the not (11th Cir.1990) (“[A]s general apply. All of guideline amendment does appellate not rule an court will consider effective appellants were sentenced after its theory legal or raised for the first time issue Application of this amendment would date. appeal_”). on Ex not violate the Post Facto Clause application would Constitution because its greater guideline

statutory punishment than was authorized ‍​‌​​‌‌​‌​‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌​​​​‌​‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‍prior to “[E]ven to the amendment.

the amendment the distinction made and cocaine base between cocaine Further, express purpose

was clear. reject the HARDY, the 1993 amendment was to inter- In re Pierce Lamar Debtor. pretation of ... which had eases ruled HARDY, Pierce Lamar Plaintiff- cocaine base included more than crack.... Appellant, Thus, expand the amendment did *7 reach of the term cocaine base as used 2D1.1(c), it.” but rather confined United America, By acting UNITED STATES (2d Montoya, States Through the INTERNAL REVE- Cir.1996). SERVICE, Defendant-Appellee. NUE join portion part I do not IV of the Sylvia Drayton, appellants’ opinion court’s that addresses Ford Barnee Baxter, contention that crack cocaine and other C. Trustees. disparately forms of cocaine base are treated No. 94-9089. basis, without a rational in violation of the equal protection prong of the Due Process Appeals, United Court of States I would not address that contention Clause. Eleventh Circuit. presented because it was not to the district Oct. court. present admittedly failed to this is-

Sloan appel-

sue to the district court. The other

lants filed the district court written asserting

motion their constitutional chal-

lenges question. scheme ground equal protection for their chal-

lenge appears in their motion. It reads as

follows: