United States v. Alton

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

8-4-1995

United States v Alton
Precedential or Non-Precedential:

Docket 94-3313

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 94-3313 and 94-3314

UNITED STATES OF AMERICA

Appellant

v.

DARNELL LEE ALTON; HOWARD SCOTT;
GINA LEWIS; ANGELA ALTON

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 92-cr-00257-1)

Argued June 27, 1995

Before: HUTCHINSON, ROTH and GARTH, Circuit Judges

(Opinion Filed August 4, 1995)

Frederick W. Thieman
United States Attorney
Paul J. Brysh (Argued)
Assistant U.S. Attorney
633 U.S. Post Office and Courthouse
Pittsburgh, PA 15219
Attorneys for Appellant and Cross-Appellee

Gary B. Zimmerman, Esq. (argued)
Suite 620
312 Boulevard of the Allies
Pittsburgh, PA 15222
Attorney for Appellee and Cross-Appellant

OPINION OF THE COURT

ROTH, Circuit Judge:

Appellee Darnell Alton was one of four individuals

charged in an indictment alleging various drug offenses. Count

One charged Alton with conspiracy to possess and distribute

cocaine and cocaine base ("crack cocaine"), in violation of 21

U.S.C. § 846; Count Two charged Alton with possession with intent

to distribute in excess of five grams of cocaine base, in

violation of 21 U.S.C. § 841(a)(1); Count Three charged Alton

with possession with the intent to distribute more than 500 grams

of cocaine, in violation of 21 U.S.C. § 841(a)(1).

Between 1990 and 1992, Alton was a heavy crack cocaine

trafficker in the Pittsburgh area. He employed a number of

people who cooked cocaine powder into crack, stored it, and

distributed it on the street. On July 23, 1991, following a tip

from a confidential informant that Alton was in possession of a

large quantity of cocaine, which he was selling from his house,

police executed search warrants for Alton's person, residence,

and car. Crack cocaine was found on Alton's person and cocaine

powder and cash was found at Alton's residence. Three members of

Alton's operation testified at trial about Alton's drug

transactions.
 Alton was found guilty at trial on Counts One and Two

but was acquitted on Count Three. At sentencing, the district

court departed downward from the United States Sentencing

Guidelines ("Guidelines") range for cocaine base offenses and

imposed a ten-year term of imprisonment and a five-year term of

supervised release. The Government filed this appeal to

challenge the district court's failure to follow the provisions

of the Guidelines as they apply to offenses involving cocaine

base. Because we find that the district court erred in departing

downwards from the applicable guideline range, we will vacate the

sentence and remand for resentencing.0

II.

A.

At issue in this case are the provisions of the

Sentencing Guidelines (U.S.S.G. § 2D1.1) that impose more severe

sentences on those prosecuted for distribution or possession with

intent to distribute crack cocaine0 than on those prosecuted for

similar crimes involving cocaine powder.0 The disparity in the
0
On
cross-appeal, Alton alleges that the Government
introduced evidence seized pursuant to a defective search
warrant, thereby violating his rights as guaranteed by the Fourth
Amendment to the United States Constitution. We have reviewed
this claim and find it to be without merit.
0
The Guidelines define cocaine base as "crack" -- "the
street name for a form of cocaine base, usually prepared by
processing cocaine hydrochloride and sodium bicarbonate, and
usually appearing in a lumpy, rocklike form." U.S.S.G. § 2D1.1,
Drug Quantity Table, footnote. We use the terms "cocaine base"
and "crack cocaine" interchangeably in this opinion to
distinguish this form of cocaine from cocaine powder.
0
This sentencing scheme applies to defendants convicted
of the offenses enumerated in 21 U.S.C. § 841(a), including
distribution or possession with intent to distribute controlled
substances, and those convicted of attempting or conspiring to
treatment of offenses involving the two substances originated in

congressional action.

Pursuant to the Anti-Drug Abuse Act of 1986, Congress

established basic sentencing levels for crack cocaine offenses.

Congress amended 21 U.S.C. § 841 to provide for a 100:1 ratio in

the quantities of cocaine powder and crack cocaine that trigger

mandatory minimum penalties. Amended 21 U.S.C. § 841(b)(1)(A)

establishes a mandatory ten-year term of imprisonment for

offenses involving 5 kilograms of cocaine or 50 grams of cocaine

base. And 21 U.S.C. § 841(b)(1)(B) provides for a mandatory

five-year term of imprisonment for offenses involving 500 grams

of cocaine or 5 grams of cocaine base.

Based on those statutory provisions, the Drug Quantity

Table of U.S.S.G. § 2D1.1 treats any quantity of cocaine base as

the equivalent of 100 times the same quantity of cocaine powder.

Moreover, the Drug Equivalency Tables, U.S.S.G. § 2D1.1, pursuant

to which the penalty for an offense involving one controlled

substance is tied to or converted to the weight of an unrelated

controlled substance for sentencing purposes, equate one gram of

cocaine base to 20 kilograms of marijuana but one gram of cocaine

to 200 grams of marijuana.

B.

commit those offenses, pursuant to 21 U.S.C. § 846. See United
States v. Frazier, 981 F.2d 92, 94 n.1 (3d Cir. 1992) (explaining
the sentencing scheme), cert. denied, 113 S. Ct. 1661 (1993),
cert. denied sub nom. Pettus v. United States, 113 S. Ct. 1662
(1993).
 Although Alton was found guilty of crack cocaine

offenses, the district court departed downward from the sentence

range that the Guidelines prescribe for such offenses. The court

attributed 422.68 grams of crack cocaine and 235.5 grams of

cocaine powder to Alton. Pursuant to the Drug Equivalency Table,

U.S.S.G. § 2D1.1, the court converted the 422.68 grams of crack

cocaine to 8453.6 kilograms of marijuana and the 235.5 grams of

cocaine powder to 47.1 kilograms of marijuana, arriving at a

total of 8500.7 kilograms of marijuana, which corresponds to a

base offense level of 34. The court added 4 levels to the base

offense level pursuant to U.S.S.G. § 3B1.1(a), based on Alton's

role in the offense, but granted a 3 point reduction for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.

Thus, the court fixed the total offense level at 35,

which provides for a sentence range of 168-210 months. The court

granted a downward departure from that range based on 18 U.S.C.

§3553(b) and U.S.S.G. § 5K2.0,0 concluding that the Sentencing

Commission did not adequately consider a mitigating factor -- the

disparate impact that its policies would have on African-American

males -- when it developed guideline ranges for crack cocaine.0

0
U.S.S.G. § 5K2.0 states:

Under 18 U.S.C. § 3553(b) the sentencing court may
impose a sentence outside the range established by the
applicable guideline, if the court finds "that there
exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in
formulating the guidelines that should result in a
sentence different from that described."
0
The court adopted the reasoning of a district court
case that since has been vacated in relevant part. See United
 In justifying the departure, the court further relied

on indications that Congress has reconsidered the rationality of

the 1 to 100 ratio. Moreover, the court cited the 1993 annual

report of the United States Sentencing Commission, which

indicates that for the period from October 1, 1992, through

September 30, 1993, "95.1 percent of the offenders incarcerated

and subjected to the 1 to 100 ratio between crack and powdered

cocaine [were] either black or Hispanics." Appendix at 846, 872-

73.

The court additionally discussed the Drug Equivalency

Tables, U.S.S.G. § 2D1.1. The court concluded that the

conversion of one gram of cocaine base to 20 kilograms of

marijuana, pursuant to those tables, is arbitrary and capricious.

Citing Motor Vehicle Manufacturers Assoc. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29 (1983) as authority, the

court elected to ignore what it termed the "improper agency

action" establishing the equivalency and to apply the mandatory

minimum sentence established by Congress for similar offenses

involving cocaine powder.

III.

A.

21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) & (iii) are the

statutory provisions that establish a mandatory minimum ten year

penalty for offenses involving cocaine powder and crack cocaine.

States v. Majied, 1993 U.S. Dist. LEXIS 15156 (D. Neb. July 29,
1993), aff'd in part and vacated in part sub nom. United States
v. Maxwell, 25 F.3d 1389 (8th Cir.), cert. denied, 115 S. Ct. 610
(1994).
The statute provides a 100:1 ratio between the amounts of crack

cocaine and of cocaine powder which are required to activate the

minimum mandatory penalty. Both parties acknowledge that the

statute is constitutional on its face. However, the Government

challenges the district court's conclusion that the guideline

treatment of crack cocaine offenses is arbitrary and capricious.

Moreover, the Government challenges the district court's downward

departure from the Guidelines based on the disproportionate

impact of the severe penalties for crack cocaine offenses on

African-Americans.

B.

The district court held that the Sentencing Commission

acted in an arbitrary and capricious manner by providing for the

conversion of one gram of cocaine base to 20 kilograms of

marijuana for sentencing purposes, pursuant to the Drug

Equivalency Tables in U.S.S.G. § 2D1.1. The court concluded that

the Sentencing Commission violated the informal rulemaking

procedures of the Administrative Procedures Act, 5 U.S.C. § 553,

and that the guideline provisions under which Alton was sentenced

are therefore void.0
0
The parties did not raise, this Circuit has not decided, and we
accordingly do not address, the issue of whether or not the
Sentencing Commission, as an entity within the judicial branch,
is an agency which is subject to the provisions of the APA. See
Washington Legal Found. v. U.S. Sentencing Com'n, 17 F.3d 1446,
1450 (D.C.Cir. 1994) (Commission not subject to the provisions of
the APA except as specifically enumerated). However, Congress did
specifically provide in 28 U.S.C. § 994(x) that promulgation of
the Guidelines by the Sentencing Commission would be subject to
the rulemaking provisions of § 553 of the APA. See, e.g., United
States v. Mistretta, 488 U.S. 361, 394 (1989) ("In contrast to a
court, [the Commission's] rule-making is subject to the notice
 In Motor Vehicle Manufacturers Assoc. v. State Farm

Mutual Automobile Insurance Co., 463 U.S. at 43, the Supreme

Court held that an agency adopting a rule pursuant to informal

rulemaking procedures "must examine the relevant data and

articulate a satisfactory explanation for its action including a

`rational connection between the facts found and the choice

made.'" The Commission provides such an explanation for the

challenged Guideline provisions in U.S.S.G. § 2D1.1, comment 10,

which states that the Commission "used the sentences provided in,

and equivalences derived from, the statute (21 U.S.C. §

841(b)(1)) as the primary basis for the Guideline sentences."

As the district court held, 21 U.S.C. § 841(b)(1) does

not equate crack cocaine to another controlled substance or

authorize the use of an equivalency table pursuant to which the

penalty for an offense involving one controlled substance is tied

to or converted to the weight of an unrelated controlled

substance. Nonetheless, the statute does establish the 100:1

ratio of cocaine powder to crack cocaine. The same ratio is

reflected in the Drug Equivalency Tables, pursuant to which 1

gram of cocaine is equivalent to 200 grams of marijuana and 1

gram of crack cocaine is equivalent to 20 kilograms of marijuana.

The Commission established drug equivalences as "a means for

combining differing controlled substances to obtain a single

offense level." U.S.S.G. § 2D1.1, comment 10. Clearly the

and comment requirements of the [APA].") The parties to this
appeal have agreed that the standard to be applied is "arbitrary
and capricious."
Commission looked to the statute as a guide in formulating the

equivalences. The statute in turn was based on Congress's

consideration of available data on the two forms of cocaine.

We have upheld the constitutionality of both the

federal drug statutes (21 U.S.C. §§ 841(b)(1) & 846) and the

guideline provisions (U.S.S.G. § 2D1.1) that treat crack cocaine

offenses more severely than offenses involving an equal quantity

of cocaine powder. See United States v. Frazier, 981 F.2d at 92

(holding that distinctions between crack cocaine and cocaine

powder for sentencing purposes do not constitute an equal

protection violation and that the 100:1 ratio does not constitute

cruel and unusual punishment); United States v. Jones, 979 F.2d

317 (3d Cir. 1992) (holding guideline provisions imposing higher

offense levels for offenses involving crack cocaine not to be

unconstitutionally vague).

In United States v. Frazier, we explicitly rejected an

equal protection challenge to the relevant statutory and

guideline procedures. We first observed that the statutes and

guidelines do not on their face classify defendants by race.

Next, we determined that the provisions do not employ a facially

"non-racial characteristic that strongly correlates with race for

cultural or socioeconomic reasons as a sham disguising invidious

racial classification." Frazier, 981 F.2d at 95 (citing Yick Wo
v. Hopkins, 118 U.S. 356 (1886)). We concluded that there was

"no evidence whatsoever that suggests that the distinction drawn

between cocaine base and cocaine was motivated by any racial

animus or discriminatory intent on the part of either Congress or
the Sentencing Commission." Id. We held that absent such an

explicit or inferable discriminatory purpose, the statutory

distinction between cocaine base and cocaine is subject to

rational basis review, which it withstands.0 Id.

In rejecting constitutional challenges to the

distinction between cocaine base and cocaine powder in the

federal sentencing scheme, courts have consistently found that

Congress had a rational basis for treating offenses involving the

two substances differently. In Jones, 979 F.2d at 320, we

emphasized the chemical differences between crack cocaine and

cocaine powder, concluding that "the Sentencing Guidelines have a

reasonable basis to differentiate between cocaine base and

cocaine salt." Moreover, other courts have emphasized the

potency of crack cocaine, "the ease with which drug dealers can

carry and conceal it, the highly addictive nature of the drug,

and the violence which often accompanies trade in it." United

0
The Jones and Frazier decisions appear to be in accord
with the decisions of other federal courts of appeals. These
federal courts have uniformly upheld the statutory and guideline
penalties for crack cocaine offenses against due process, equal
protection, and cruel and unusual punishment claims. See, e.g.,
United States v. Byse, 28 F.3d 1165 (11th Cir. 1994) (equal
protection challenge), cert. denied, 115 S. Ct. 767 (1995);
United States v. Coleman, 24 F.3d 37 (9th Cir.) (equal protection
challenge), cert. denied, 115 S. Ct. 261 (1994); United States v.
Fisher, 22 F.3d 574 (5th Cir. 1994) (Eighth Amendment challenge),
cert. denied sub nom. Dunkins v. United States, 115 S. Ct. 529
(1994), ; United States v. Palacio, 4 F.3d 150 (2d Cir. 1993)
(due process challenge), cert. denied, 114 S. Ct. 1194 (1994);
United States v. Easter, 981 F.2d 1549 (10th Cir. 1992) (due
process and equal protection challenge), cert. denied, 113 S. Ct.
2448 (1993); United States v. Avant, 907 F.2d 623 (6th Cir. 1990)
(vagueness and Eighth Amendment challenge).
States v. Lattimore, 974 F.2d 971, 975 (8th Cir. 1992), cert.

denied, 113 S. Ct. 1819 (1993).0

We conclude, therefore, that no "improper" agency

action was involved in the Sentencing Commission's establishment

of the Equivalency Tables, at least insofar as we are involved

here with the 100:1 ratio between crack cocaine and cocaine

powder.

C.

We next address the Government's contention that the

district court erred in concluding that 18 U.S.C. § 3553(b) and

U.S.S.G. § 5K2.0 authorize a downward departure from the

applicable guideline range on the grounds that the Sentencing

Commission did not adequately consider the disparate impact that

its policies would have on African-American males when it

developed guideline ranges for crack cocaine offenses.

As set forth above, U.S.S.G. § 5K2.0 adopts the mandate

of 18 U.S.C. § 3553(b), stating that a sentencing court may

impose a sentence outside the range established by the applicable

guideline upon finding the existence of "an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in

0
See also United States v. Lawrence, 951 F.2d 751 (7th
Cir. 1991) (holding that the penalty scheme "evinces a rational
purpose and does not violate the Due Process clause"); United
States v. Buckner, 894 F.2d 975 (8th Cir. 1990) (concluding that
the 100:1 ratio is rationally related to the congressional
objective of protecting public welfare).
formulating the guidelines that should result in a sentence

different from that described." U.S.S.G. § 5K2.0.

In Frazier, we held that even assuming the appellants'

claim that "a very high percentage of defendants convicted for

cocaine base offenses are black, while defendants convicted for

cocaine offenses are more likely to be white," such racial

disparities are insufficient to establish that U.S.S.G. § 2D1.1

violates the equal protection clause. We held that "[e]ven

conscious awareness on the part of the legislature that the law

will have a racially disparate impact does not invalidate an

otherwise valid law," provided that such awareness does not play

a causal role in the statute's passage. Frazier, 981 F.2d at 95.

Although the issue here is not whether the relevant

guideline provisions are invalid on the grounds of disparate

impact but only whether a downward departure is warranted, the

reasoning of Frazier is instructive. Moreover, every appellate

court that has considered the matter has held that the impact of

the guideline treatment of crack cocaine is not a proper ground

for downward departures from the applicable guideline range.

These courts have rejected defendants' arguments that the

continued enforcement, rather than the enactment, of the

challenged sentencing provisions is unconstitutional.0

0
See, e.g., United States v. Maxwell, 25 F.3d 1389 (8th
Cir.), cert. denied, 115 S. Ct. 610 (1994); United States v.
Bynum, 3 F.3d 769 (4th Cir. 1993), cert. denied, 114 S. Ct. 1105
(1994); United States v. Lattimore, 974 F.2d at 971; United
States v. Haynes, 985 F.2d 65 (2d Cir. 1993).
 In United States v. Bynum, 3 F.3d at 774-75, the Fourth

Circuit rejected the defendant's argument that the Sentencing

Commission's alleged failure to consider the disparate impact on

African-Americans of the 100:1 powder-to-crack ratio constitutes

a ground for a downward departure. The court reasoned that a

showing that the Commission failed to take a factor into account

cannot suffice to justify a downward departure. Indeed, the

court explained, "[f]rom the countless factors that constitute

the human experience, the Commission necessarily considered only

a few. Any defendant can identify something about himself that

the guidelines do not address." Id. at 774. Therefore, the

court emphasized, the factor alleged not to have been considered

must also be a factor for which a sentence outside the guidelines

"should result." Id.

Observing that the proposed mitigating circumstance in

Bynum rested on membership in a class rather than on a factor

personal to the defendant, the court held that the guidelines'

failure to address the impact of a provision on a class should

result in a class-wide downward departure "only when failure to

provide it would deprive the class of equal protection." Id. at
775. Thus, the court rejected the "extraordinary relief" that

the defendant requested on the grounds that the 100:1 powder-to-

crack ratio was not enacted pursuant to a discriminatory purpose

and thus did not violate the constitutional principle of equal

protection. Id.; see also Maxwell, 25 F.3d at 1401 (adopting the

Fourth Circuit's reasoning and stating that allowing such a
class-wide departure would "impede Congress's policy decision to

treat cocaine base more harshly than powder cocaine").

Alton has not established facts or circumstances

peculiar to himself or his offense that justify a downward

departure. He justifies departure from the guidelines solely on

the overall impact of the guidelines, a factor present in all

crack cocaine cases. Such a departure cannot be reconciled with

the language of the guidelines.

Indeed the reasoning of Bynum and other cases in which

courts have refused to affirm downward departures based on the

disparate impact of the crack cocaine sentencing scheme rests

squarely on the language of the guidelines. The Commentary to

U.S.S.G. § 5K2.0 states that "[i]n the absence of a

characteristic or circumstance that distinguishes a case as

sufficiently atypical to warrant a sentence different from that

called for under the guidelines, a sentence outside the guideline

range is not authorized." The Commission likewise addresses the

subject of departures in the Introduction to Chapter One of the

Guidelines, stating:
The Commission intends the sentencing courts to treat
each guideline as carving out a "heartland," a set of
typical cases embodying the conduct that each guideline
describes. When a court finds an atypical case, one to
which a particular guideline linguistically applies but
where conduct significantly differs from the norm, the
court may consider whether a departure is warranted.

U.S.S.G. Manual, Ch.1, Part A4(b). The Commission noted its

expectation "that despite the courts' legal freedom to depart

from the guidelines, they will not do so very often." Id.
 IV.

We limit our decision to holding that the disparate

impact of the severe penalties for crack cocaine offenses on

African-Americans is not a valid ground for departure from the

guideline ranges for crack cocaine offenses. Accordingly, we

vacate the sentence and remand for resentencing within the

applicable guideline ranges. We defer to Congress and the

Sentencing Commission to address the related policy issues and to

consider the wisdom of retaining the present sentencing scheme.