United States v. Moore

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-2261

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

R ODERICK M OORE,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 584—Ruben Castillo, Judge.

A RGUED M ARCH 30, 2011—D ECIDED JUNE 3, 2011

Before F LAUM, W OOD , and T INDER, Circuit Judges.
F LAUM, Circuit Judge. Roderick Moore pled guilty to
distributing more than 50 grams of crack cocaine in
violation of 21 U.S.C. § 841. He challenges the constitu-
tionality of the penalties set forth in that section, which,
at the time he was sentenced, punished those dealing
in crack cocaine 100 times more severely that those
dealing in powder cocaine. The district court rejected
Moore’s argument that the crack-powder disparity
2 No. 10-2261

violates his Due Process and Equal Protection rights.
Because there remains at least some evidence that crack
cocaine is more dangerous than powder cocaine, we
conclude that the sentencing scheme survives rational
basis review and affirm the judgment of the district court.

I. Background
Moore was arrested on federal drug trafficking charges
on July 30, 2008, after he was recorded selling both
crack and powder cocaine to a cooperating defendant
and an undercover officer on separate occasions. A
federal grand jury returned an indictment against Moore
on August 27, 2008, charging him with distributing
more than 50 grams of cocaine base in the form of
crack cocaine and distributing an unspecified amount of
powder cocaine, both in violation of 21 U.S.C. § 841(a)(1).
Moore sought to have the indictment dismissed, arguing
that the crack-powder disparity codified at 21 U.S.C.
§ 841(b)—which punishes crack cocaine offenses 100 times
more severely than powder cocaine offenses—violated
his Fifth and Eighth Amendment rights. The district
court denied the motion without briefing or a hearing,
concluding that Moore’s challenges were foreclosed
by this Court’s precedents.
Moore accepted responsibility for the recorded sales,
as well as another unrecorded sale, making him account-
able for a total of 253.2 grams of cocaine base (“crack”) and
374.6 grams of powder cocaine. He entered a conditional
guilty plea, allowing him to appeal the denial of the
motion to dismiss the indictment. On May 11, 2010,
No. 10-2261 3

the district court sentenced Moore to the ten-year manda-
tory minimum sentence that applied to violations in-
volving 50 or more grams of crack cocaine at that time.1
See 21 U.S.C. § 841(b)(1)(A)(iii). Moore appeals the
denial of his motion to dismiss the indictment based on
the Fifth Amendment arguments he made below; he
has abandoned his Eighth Amendment claim.

II. Discussion
We review the constitutionality of a statute, which is
a question of law, de novo. United States v. Olofson, 563
F.3d 652, 659 (7th Cir. 2009). Moore challenges the con-
stitutionality of the crack-powder disparity, which was
enacted as part of the Anti-Drug Abuse Act of 1986 and
remained the law at the time he was sentenced, on two
grounds. First, Moore argues that the 100-to-1 ratio is
arbitrary and irrational, in violation of his right to sub-
stantive due process. Second, Moore contends that
the crack-powder disparity has a disparate impact on
African-American defendants, in violation of the Equal
Protection clause of the Fifth Amendment. Moore
concedes that we have considered and rejected similar
arguments in the past, see United States v. Lawrence, 951
F.2d 751 (7th Cir. 1991); United States v. Chandler, 996 F.2d
917 (7th Cir. 1993), but maintains that data not available

1
Congress amended § 841(b)(1)(A)(iii) with the passage of
the Fair Sentencing Act of 2010 (“FSA”) on August 3, 2010.
The ten-year mandatory minimum sentence now applies to
offenses involving 280 grams or more of crack cocaine.
4 No. 10-2261

to us at the time of those prior rulings compels a dif-
ferent outcome today.

A. Substantive Due Process Challenge
We review acts of Congress with “considerable defer-
ence.” Lawrence, 951 F.2d at 754. The penalty scheme at
issue does not encroach on a fundamental right, see Chap-
man v. United States, 500 U.S. 453, 464-65 (1991), and
therefore we apply a rational basis standard of review,
Lee v. City of Chicago, 330 F.3d 456, 467 (7th Cir. 2003). The
pertinent inquiry is whether the crack-powder disparity
bears a reasonable relation to any proper legislative
purpose.
As the Supreme Court explained in Kimbrough v.
United States, 552 U.S. 85, 95 (2007), Congress adopted
the 100-to-1 ratio based on its belief “that crack was
significantly more dangerous than powder cocaine.”
That belief was based on evidence indicating that
“(1) crack was highly addictive; (2) crack users and
dealers were more likely to be violent than users and
dealers of other drugs; (3) crack was more harmful to
users than powder, particularly for children who had
been exposed by their mothers’ drug use during preg-
nancy; (4) crack use was especially prevalent among
teenagers; and (5) crack’s potency and low cost were
making it increasingly popular.” Id. at 95-96.
This Court, and others, similarly relied on that evi-
dence in upholding the sentencing scheme, reasoning
that punishing crack offenses more severely than powder
No. 10-2261 5

cocaine offenses is rationally related to the govern-
ment’s legitimate interest in protecting the public from
the dangers of crack cocaine. See Lawrence, 951 F.2d at
755 (based on the risks associated with crack, including
its “highly addictive nature . . ., its growing availability,
and [its] relatively low cost,” concluding that the 100-to-1
ratio was rationally related to Congress’s purpose of
combating the drug’s effects); United States v. Stevens,
19 F.3d 93, 97 (2d Cir. 1994) (“the greater accessibility
and addictiveness of crack” provides a rational basis
for the crack-powder disparity); United States v. Bynum,
3 F.3d 769, 774 (4th Cir. 1993) (“the 100-to-1 ratio . . . is
rationally related to a legitimate government end,
because crack is a greater threat to society” than is
powder cocaine); United States v. Pickett, 941 F.2d 411, 418
(6th Cir. 1991) (concluding that the “problems caused by
the special qualities of crack” provided a rational basis
for the disproportionate sentencing scheme); United States
v. Buckner, 894 F.2d 975, 978-80 (8th Cir. 1990) (holding
that the crack-powder disparity is rationally related to
Congress’s objective of protecting the public welfare, in
light of Congress’s belief that crack is “more dangerous
to society than cocaine”); United States v. Catchings, 922
F.2d 777, 780 n.3 (11th Cir. 1991) (per curiam) (“[T]he
difference in penalties between crack and other forms
of cocaine demonstrated that Congress considered crack
to be a more powerful and dangerous drug.”).
Moore contends that data amassed by the Sentencing
Commission and others over the past twenty years dem-
onstrates that Congress relied on flawed evidence in con-
cluding that crack is more dangerous than powder
6 No. 10-2261

cocaine, and in arriving at the 100-to-1 differential. It is
true that where “a statute [is] predicated upon the exis-
tence of a particular state of facts” (as the instant statute
is based on the belief that crack is more dangerous than
powder cocaine), its constitutionality “may be chal-
lenged by showing to the court that those facts have
ceased to exist.” United States v. Carolene Products Co.,
304 U.S. 144, 153-54 (1938). However, such a challenge
will fail where it is even debatable that the classifica-
tion is rational, because, where that is the case, the
decision is one for Congress. Id. at 154. To succeed, there-
fore, Moore must demonstrate that Congress has no
reasonable basis for believing that crack is more
dangerous than powder cocaine. Vance v. Bradley, 440
U.S. 93, 111 (1979).
Moore fails to make that formidable showing. He
relies on a series Sentencing Commission reports ad-
vocating the abandonment of the 100-to-1 ratio. As the
Kimbrough Court noted, for the past decade and a half,
the Commission has consistently recommended that
Congress alter the ratio, calling for a 1-to-1 ratio in 1995,
a 5-to-1 ratio in 1997, and lowering the ratio “at least” to
20-to-1 in 2002. 552 U.S. at 99. The Commission also
has reported that some of the specific evidence of
crack’s dangerousness on which Congress relied was
incorrect. For example, in 2002, the Commission re-
ported that, contrary to the 1986 Congress’s under-
standing, “prenatal exposure to crack cocaine produces
identical effects as prenatal exposure to powder cocaine
and is far less devastating than previously reported.” The
Commission further reported that crack is associated
No. 10-2261 7

with “significantly less trafficking-related violence . . . than
previously assumed,” and that “the epidemic of crack
cocaine use by youth never materialized to the extent
feared.” Kimbrough, 552 U.S. at 98 (citations omitted).
There can be no dispute that this evidence undermines
some of the assumptions on which the 100-to-1 ratio
originally was based. However, the Sentencing Commis-
sion reports also contain findings indicating that crack
is at least somewhat more dangerous than powder co-
caine. For example, in 2002, the Sentencing Commission
reported that “crack is more addictive than powder, crack
offenses are more likely to involve weapons or bodily
injury, and crack distribution is associated with higher
levels of crime.” Id. Similarly, the Commission’s 2007
report states that while “weapon involvement . . . is
present in only a minority of both powder cocaine
and crack cocaine offenses[,] . . . crack cocaine offenses
continue to involve this conduct more often than
powder cocaine offenses.” The 2007 report further notes
that violence is more prevalent in crack cocaine cases
than in powder cocaine cases, and that “the risk of addic-
tion and personal deterioration may be greater for
crack cocaine than for powder cocaine because of their
different methods of usual administration (typically
crack cocaine is smoked whereas powder cocaine
typically is snorted).” Thus, the Sentencing Commission
reports on which Moore relies demonstrate a rational
basis for punishing crack offenses more harshly than
powder cocaine offenses.
Moore’s primary position is that the 100-to-1 ratio is
too high. But that argument relates to the wisdom of the
8 No. 10-2261

approach Congress selected to address the problems
associated with crack cocaine, something we have no
authority to second-guess. FCC v. Beach Communications,
Inc., 508 U.S. 307, 313 (1993). As such, whether we
believe another approach to the issue—such as a lower
crack-to-powder ratio—would be preferable is irrelevant
to our analysis. Heller v. Doe, 509 U.S. 312, 330 (1993).
Because Moore has not demonstrated that the crack-
powder disparity “rests on grounds wholly irrelevant
to the achievement of [Congress’s] objective,” it sur-
vives rational-basis review. Id. at 324 (internal quota-
tion omitted).

B. Equal Protection Challenge
Moore also contends that the 100-to-1 ratio discriminates
against African Americans in violation of the Equal
Protection clause of the Fifth Amendment. In support,
he points to evidence indicating that the majority of
offenders convicted of crack cocaine offenses—and thus
the majority of those subject to the more severe crack
cocaine penalties—are African American.
Rational basis review applies to Moore’s equal protec-
tion challenge unless he can demonstrate that Congress
acted with discriminatory intent in enacting the crack-
powder differential, in which case heightened scrutiny
applies. See Personnel Adm’r of Mass. v. Feeney, 442
U.S. 256, 272 (1979). Discriminatory intent implies more
than mere “awareness of consequences.” United States
v. Chandler, 996 F.2d 917, 918 (7th Cir. 1993). It means
that the decision maker “selected or reaffirmed a par-
No. 10-2261 9

ticular course of action at least in part ‘because of’, not
merely ‘in spite of’, its adverse effects upon an
identifiable group.” Feeney, 442 U.S. at 279.
Moore argues that disparate impact alone is sufficient
to show discriminatory purpose here. The Supreme
Court has recognized that in some “rare” cases, evidence
of discriminatory impact alone is sufficient to establish
intent to discriminate. Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 266 (1977). But
evidence of disparate impact will be accepted as the
sole proof of discriminatory intent only where it demon-
strates a “stark … pattern” of discriminatory impact that
is “unexplainable on grounds other than race.” Id.2 ; see
also McCleskey v. Kemp, 481 U.S. 279, 293-94 (1987) (“statis-

2
Citing as examples Yick Wo v. Hopkins, 118 U.S. 356 (1886)
(finding that ordinance prohibiting operation of laundries in
wooden buildings without a permit violated the Equal Protec-
tion clause because it was administered in a manner that
discriminated against Chinese permit applicants); Guinn v.
United States, 238 U.S. 347 (1915) (invalidating, under the
Fifteenth Amendment, statute imposing a literacy requirement
on voters that contained a “grandfather clause” applicable to
individuals and their lineal descendants entitled to vote “on [or
prior to] January 1, 1866” because it could not be explained
except as an attempt to circumvent the amendment); Gomillion
v. Lightfoot, 364 U.S. 339, 340 (1960) (state legislature violated
the Fifteenth Amendment by altering city boundaries “from
a square to an uncouth twenty-eight-sided figure,” and, as
a result, excluding nearly all black voters without excluding
a single white voter).
10 No. 10-2261

tical proof normally must present a ‘stark’ pattern to
be accepted as the sole proof of discriminatory intent
under the Constitution”). This is not one of those rare
cases. The crack-powder disparity is explainable on
grounds other than race—namely, Congress’s rational
belief that crack cocaine offenses should be punished
more severely than powder cocaine offenses. Accord
United States v. Byse, 28 F.3d 1165, 1170 n.8 (11th Cir.
1994); United States v. Singleterry, 29 F.3d 733, 741 (1st
Cir. 1994).
Because Moore has not established discriminatory
intent, rational basis review applies. As discussed
above, the crack-powder disparity is rationally related to
Congress’s legitimate interest in protecting the public
from the effects of crack cocaine. Therefore, Moore’s
equal protection claim cannot succeed.

C. Application of the Fair Sentencing Act of 2010
The parties submitted supplemental briefs addressing
whether the FSA, which increased the drug quantities
necessary to trigger mandatory minimum sentences,
should apply to Moore, who was sentenced three
months before the FSA’s effective date. The FSA effec-
tively reduced the crack-powder disparity from 100-to-1
to approximately 18-to-1. We have held that the FSA
does not operate retroactively. See United States v. Bell,
624 F.3d 803, 814 (7th Cir. 2010). Ten other circuits
agree. See United States v. Goncalves, 2011 WL 1631649, at *6
n.8 (1st Cir. April 28, 2011) (citing cases). Moreover,
we have noted that the relevant date is the date on
No. 10-2261 11

which the defendant’s conduct took place, not the date
of sentencing. United States v. Fisher, 2011 WL 832942, at
*1 (7th Cir. March 11, 2011). Thus, under our case law,
the FSA does not apply to Moore, who was sentenced
based on conduct that occurred before the statute’s
August 3, 2010 effective date.

III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the district court.

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