PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-2101
D. C. Docket No. 93-157-CR-T-99C
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY SLOAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
---------------------------------------------------------------
Nos. 94-9138, 94-9159
94-9161 and 94-9263
D. C. Docket Nos. 1:93-CR-483-2, 1:93-CR-483-5,
1:93-CR-483-4, 1:93-CR-483-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HEIN VAN PHUNG, a.k.a. Hieu, HOANG NGO,
TAI NGUYEN and BAO VUONG,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Georgia
(October 7, 1996)
Before KRAVITCH and COX, Circuit Judges, and CLARK, Senior
Circuit Judge.
KRAVITCH, Circuit Judge:
In these consolidated appeals, appellants challenge the
sentences imposed after their pleas of guilty to violations of 21
U.S.C. § 841(a).1 Appellants argue that the relevant statute and
Sentencing Guidelines (“guidelines”) are ambiguous because they
use a 100:1 weight ratio for “cocaine base” and “cocaine”
offenses and thereby punish cocaine base offenses more severely
despite the fact that cocaine and cocaine base are chemically
synonymous. Appellants contend the rule of lenity should apply
and they should receive the less severe penalties. We disagree
and affirm the sentences imposed by the district court.
I.
Appellant Roy Sloan pleaded guilty, in the Middle District
of Florida, to two counts of possessing cocaine base with intent
to distribute in violation of 21 U.S.C. § 841(a). At his change
of plea hearing, Sloan acknowledged he was pleading guilty to a
charge of distributing crack cocaine, and he confirmed the
1
Tai Nguyen, Huong Ngo and Bao Vuong also appeal the
district court’s deportation order. Those claims are precluded
by the ruling in United States v. Oboh, 92 F.3d 1082 (11th Cir.
1996) (en banc).
2
accuracy of the government’s factual recitation which indicated
he had dealt in crack cocaine. His Pre-Sentence Report (“PSR”)
described specific instances in which Sloan distributed crack
cocaine and it proposed an imprisonment range under the
guidelines using the offense level for cocaine base. Sloan
affirmatively accepted all the findings and guideline
applications in his PSR and received 70 months in prison.
Appellants Hein Van Phung, Ngo and Vuong each pleaded
guilty, in the Northern District of Georgia, to, inter alia,
possession of cocaine base with intent to distribute. At their
change of plea hearings, Ngo and Vuong each acknowledged that
they, acting in concert with Phung, had sold crack cocaine.2
Phung’s, Ngo’s and Vuong’s PSRs also documented that each had
distributed crack cocaine.3 At sentencing, a government expert
testified that among the substances seized in connection with the
offenses of conviction was crack cocaine, cocaine base in a rock-
like form. Phung, Ngo and Vuong did not dispute that they had
distributed this substance, but instead argued that there was no
scientific definition of crack cocaine and that the sentencing
scheme was too ambiguous to warrant enforcement of the
heightened, cocaine base penalties. The district court denied
the objections and sentenced Phung, Ngo and Vuong to prison terms
2
Phung’s plea colloquy was recorded stenographically, but
apparently not transcribed; thus, it is not part of the record.
3
The PSRs also indicated that, at a co-defendant’s trial,
Phung testified he had discussed the process for converting
cocaine hydrochloride into crack cocaine with the co-defendant.
3
of 65, 78 and 60 months, respectively.
II.
The statute under which appellants were sentenced provides
in relevant part that:
(1)(A) In the case of a [drug offense] involving -. . .
(ii) 5 kilograms or more of a mixture or substance
containing a detectable amount of -- . . .
(II) cocaine, its salts, optical and
geometric isomers, and salts of isomers; . . .
(iii) 50 grams or more of a mixture or substance
described in clause (ii) which contains cocaine base;
. . .
such person shall be sentenced to a term of
imprisonment which may not be less than 10 years or
more than life . . . .
(B) In the case of a [drug offense] involving -. . .
(ii) 500 grams or more of a mixture or substance
containing a detectable amount of -- . . .
(II) cocaine, its salts, optical and
geometric isomers, and salts of isomers; . . .
(iii) 5 grams or more of a mixture or substance
described in clause (ii) which contains cocaine base;
. . .
such person shall be sentenced to a term of
imprisonment which may not be less than 5 years and not
more than 40 years . . . .
21 U.S.C. § 841(b) (emphasis added). The guidelines also provide
for a 100:1 weight ratio which effectively punishes “cocaine
base” offenses more severely than “cocaine” offenses. See
U.S.S.G. § 2D1.1(c). Neither the statute, nor the guidelines in
effect when these crimes occurred, define “cocaine” or “cocaine
4
base.”4
Appellants contend this scheme is ambiguous because
“cocaine” and “cocaine base” are chemically synonymous. As a
result, appellants argue, both the lesser and greater penalty
provisions facially apply to all cocaine-related offenses, and
pursuant to the rule of lenity,5 the district court erred when it
failed to give them the less severe punishment.6
4
The guidelines were amended, effective November 1, 1993,
to define “cocaine base” as “crack cocaine.” U.S.S.G. §
2D1.1(c), Note D (defining crack cocaine as “a form of cocaine
base, usually prepared by processing cocaine hydrochloride and
sodium bicarbonate, and usually appearing in a lumpy, rocklike
form”). This new definition of “cocaine base” also applies to
the mandatory minimum, drug penalty statutes. See United States
v. Munoz-Realpe, 21 F.3d 375, 377-78 (11th Cir. 1994). This
amendment came into effect after these crimes occurred, but
before appellants were sentenced. While the guidelines in effect
at the time of sentencing generally apply, the Ex Post Facto
Clause, U.S. Const., Art. I, Sect. 9, prohibits an amendment from
being applied in a manner which subjects a person to a greater
statutory or guidelines punishment than was authorized prior to
the amendment. See United States v. Howard, 923 F.2d 1500, 1504
n. 5 (11th Cir. 1991). See also United States v. Camacho, 40
F.3d 349, 353 (11th Cir. 1994) (ruling that the amendment’s new
definition of cocaine base does not apply retroactively). In his
special concurrence, Judge Cox relies upon a recent Second
Circuit case to conclude that the guidelines' distinction between
cocaine and cocaine base was clear prior to the 1993 amendment,
and thus, that the amendment does not subject appellants to
greater punishment. Although the Second Circuit's view certainly
constitutes persuasive authority, we do not find it a sufficient
basis for resolving this difficult issue, and therefore conduct
our own analysis in Section III. Citations to § 2D1.1 refer to
the pre-1993 version of the guidelines unless specifically noted.
5
Under the rule of lenity, a court “will not interpret a
federal criminal statute so as to increase the penalty that it
places on an individual when such an interpretation can be based
on no more than a guess as to what Congress intended.” Ladner v.
United States, 358 U.S. 169, 178 (1958).
6
The government contends Sloan waived appeal of this issue
by failing to raise it in the district court. Sloan’s challenge
arguably is subject to plain error review. See United States v.
5
In support of these claims, appellants rely primarily upon
the transcript of the sentencing hearing held in United States v.
Davis, 864 F. Supp. 1303 (N.D. Ga. 1994). In Davis, government,
defense and court-appointed experts testified about the chemical
composition of cocaine-related substances. In Phung’s, Ngo’s and
Vuong’s cases, the district court, by consent of the parties,
adopted the Davis transcript and heard further expert testimony
from a Drug Enforcement Administration chemist.
III.
The record establishes the following facts: the chemical
compound, C17H21NO4, occurs naturally in the coca leaf. It is a
“base” because it reacts with acids to produce salts, and thus,
is referred to chemically as “cocaine” or “cocaine base.” This
compound is usually processed for importation into the United
States by dissolving coca paste derived from the coca leaf in
hydrochloric acid, Hcl, and water, H2O, to create a salt, cocaine
hydrochloride, C17H22ClNO4, popularly known as powder cocaine.
This salt is water soluble and is ingested, injected or snorted,
but not smoked because it decomposes at the same temperature at
which it evaporates. Cocaine hydrochloride can be converted back
to a base by several methods. The most common process requires:
Antonietti, 86 F.3d 206 (11th Cir. 1996) (applying plain error
review to sentencing issues). Since we find no error, plain or
otherwise, we need not address the government’s contention. The
government also argues that Phung’s and Ngo’s claims are moot
because: (1) they appealed only the stiffer statutory penalties,
not the heightened guidelines provisions; and (2) the bottom of
their guidelines exceed the statutory minimum sentences they
attack. The court rejects this narrow view of the appeals and
finds Phung and Ngo are challenging the entire sentencing scheme.
6
(1) dissolving cocaine hydrochloride in baking soda and water;
and (2) boiling the mixture into solid form. When dried, the
resulting substance, commonly called crack cocaine, is smoked and
has the same chemical formula as the naturally occurring base.
The compound, C17H21NO4, in nature or upon conversion from
cocaine hydrochloride, is a base, and its distinct physical
forms, such as coca paste and crack cocaine, are chemically
indistinguishable. Further, substances, such as cocaine
hydrochloride, are ultimately derived from the naturally
occurring compound. As a result, the references to “cocaine” and
“cocaine base” in different parts of § 841(b) and § 2D1.1 create,
as courts have noted, some facial ambiguity. See, e.g., United
States v. Booker, 70 F.3d 488, 492 (7th Cir. 1995).
This conclusion, however, does not mandate application of
the rule of lenity. “The rule comes into operation at the end of
the process of construing what Congress has expressed, not at the
beginning as an overriding consideration of being lenient to
wrongdoers.” Callanan v. United States, 364 U.S. 587, 596
(1961). The court must consider not just the language of the
sentencing regime, but also its “structure, legislative history,
and motivating policies . . . .” Bifulco v. United States, 447
U.S. 381, 387 (1980).
The structure of the statutory penalty scheme at issue here
counsels against application of the rule of lenity. Prior to
1986, the drug distribution penalty statute included only one
category covering all cocaine-related substances. See 21 U.S.C.
7
§ 841(b) (as amended 1984). In 1986, amid growing concern over
the abuse of crack cocaine, Congress amended the law. Although
crack cocaine is only one form of cocaine base, this court has
concluded that Congress “chose[] to address the ‘crack problem’
by enhancing the penalties for the more broad class of cocaine
bases.” United States v. Rodriguez, 980 F.2d 1375, 1378 (11th
Cir. 1992). To make this change, Congress created separate tiers
of punishments within § 841(b) for: (1) “cocaine, its salts,
optical and geometric isomers, and salts of isomers” (“clause
ii”); and (2) substances “described in clause (ii) which
contain[] cocaine base” (“clause iii”). Congress’ inclusion of
the phrase, “described in clause ii,” within clause iii indicates
that Congress considered clause ii a re-enactment of the
preceding catch-all provision covering all cocaine-related
substances and that by enacting clause iii, Congress intended to
single out a subset of cocaine-related substances, all forms of
cocaine base, for harsher treatment.7
The legislative history and motivating policies underlying §
841(b) also support this construction of the statute. Although
courts have construed aspects of § 841(b) differently, this court
and all other circuit courts who have considered it, have
7
Appellants assert that cocaine hydrochloride, like all
cocaine salts, “contains” cocaine base as its underlying building
block. They further argue that this fact means that clauses ii
and iii are fully coextensive, and therefore, that the statute is
hopelessly ambiguous. This argument fails because it is premised
upon an unreasonable construction of the word, “contains.”
Cocaine salts have a different chemical makeup than cocaine base,
and thus, while they contain all of the elements which make up
cocaine base, they no longer contain cocaine base.
8
concluded that, at a minimum, when Congress amended the statute
in 1986 it intended to increase penalties for crack cocaine
offenses. See, e.g., Booker, 70 F.3d at 492 (“Congress was
targeting crack cocaine when it passed the stiffer sentencing
provisions for ‘cocaine base.’”); United States v. Fisher, 58
F.3d 96, 99 (4th Cir. 1995) (“This legislative history
demonstrates that Congress intended, with the enactment of clause
(iii), to penalize more severely violations involving crack
cocaine.”); Rodriguez, 980 F.2d at 1378 (noting the legislative
history “focused on the malevolent nature of crack cocaine”).
Congress’ intent to impose more severe sanctions upon
offenses involving cocaine base, and crack cocaine in particular,
must also guide this court’s construction of the guidelines’
distinction between “cocaine” and “cocaine base” offenses. See
Munoz-Realpe, 21 F.3d at 378 (ruling that mandatory minimum, drug
penalty statutes and analogous guidelines must be treated as a
unified whole “since both provisions seek to address the same
problem”). As a result, the higher penalty provisions prescribed
for cocaine base must be applied to persons, such as appellants,
who distribute the rock-like form of cocaine base, while the
lesser cocaine penalties must be interpreted as applying to
cocaine-related substances, such as the salts, which are
chemically distinct from the base compound. See United States v.
Montoya, 87 F.3d 621, 623 (2d Cir. 1996) (ruling that even prior
to the 1993 amendment there was “no doubt that the Guidelines’
term cocaine base included at least crack” (emphasis in
9
original)). Congress’ recent rejection of the proposed guideline
amendment which would have ended the 100:1 weight ratio further
confirms its intent that crack cocaine offenses should receive
harsher treatment under the guidelines, as well as the drug
distribution statute. See United States v. Canales, 91 F.3d 363,
369 (2d Cir. 1996) (observing that “Congress instructed the
[Sentencing] Commission that ‘the sentence imposed for
trafficking in a quantity of crack cocaine should generally
exceed the sentence imposed for trafficking in a like amount of
powder cocaine’” (internal citations omitted)). “While
Congress’s later view as to the meaning of pre-existing law does
not seal the outcome when addressing a question of statutory
interpretation, it should not be discounted when relevant.”
Sorrell v. Commissioner of Internal Revenue, 882 F.2d 484, 489
(11th Cir. 1989). See also Johnson v. Commissioner of Internal
Revenue, 794 F.2d 1157, 1163 (6th Cir. 1986) (“Although the views
of a later Congress are not controlling as to the meaning of pre-
existing law, they carry some weight and may not be ignored when
they are clearly relevant.”).8
No doubt Congress could have enacted a statute which
expressed its intentions more precisely, but that fact does not
8
Appellants’ claim that crack cocaine lacks a scientific
definition does not affect these conclusions. Crack cocaine can
be chemically identified as a form of cocaine base, and it is
sufficiently physically distinguishable to allow persons, such as
appellants, to confirm that they have distributed it. See id. at
368 (“The street name ‘crack’ is not ambiguous, because crack has
a common and ordinary meaning that is understood by [appellant
concededly], by others in the drug trade, and by citizens in the
communities that are plagued by the drug.”).
10
compel the conclusion that the statute Congress chose to enact is
so ambiguous that the rule of lenity applies. Appellants are
entitled to the benefit of the rule only if their actions in
distributing a rock-like form of cocaine base were arguably
subject to § 841(b)’s and §2D1.1(c)’s lower tier of penalties.
The structure, legislative history and motivating policies behind
the sentencing scheme precludes such a conclusion.
IV.
Alternatively, appellants assert that the sentencing scheme
violates the equal protection prong of the Due Process Clause,
U.S. Const., amend. V. First, they contend it treats crack
cocaine and other forms of cocaine base disparately without a
rational basis.9 This assertion is without merit. Although the
1993 amendment to the guidelines redefined “cocaine base” as only
“crack cocaine,” that amendment went into effect after these
crimes occurred. Thus, under the law applicable to this case,
crack cocaine is treated the same as other forms of cocaine base.
9
In his special concurrence, Judge Cox proposes that we not
reach this issue “because it was not presented to the district
court.” He quotes a portion of the motion filed in district
court by the Northern District of Georgia appellants in which
they articulate only a race-based, equal protection challenge.
Elsewhere in that motion, however, these appellants also
explicitly requested that the district court adopt the reasoning
of the Davis court. In Davis, the district court concluded there
was no rational basis for treating crack cocaine and other forms
of cocaine base differently. See Davis, 864 F. Supp. at 1309 &
n. 25. Thus, although appellants could have articulated this
precise claim more clearly before the district court, in my view
they preserved the issue for appeal. Because we must reach this
issue for some appellants and find no error of any sort, there is
no need to determine the form of review, if any, to which Sloan,
who admittedly failed to raise this claim, is entitled.
11
See Rodriguez, 980 F.2d at 1378. Appellants next argue that the
sentencing regime’s distinction between cocaine base and cocaine
hydrochloride lacks a rational basis. This court repeatedly has
rejected this claim. See, e.g., United States v. Terry, 60 F.3d
1541, 1544 (11th Cir. 1995) (ruling that Congress singled out
cocaine base offenses for harsher treatment because of its
availability, cost and effects).
Accordingly, we AFFIRM the sentences imposed by the district
court.
12
United States v. Sloan
Combined Opinion