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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2004 Decided May 11, 2004
No. 03-3057
UNITED STATES OF AMERICA,
APPELLEE
v.
GEORGE BRISBANE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(02cr00315–01)
Adam H. Kurland, appointed by the court, argued the
cause and filed the briefs for appellant.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. On the briefs were Roscoe C. Howard,
Jr., U.S. Attorney, and John R. Fisher, Barbara J. Valliere,
and Mary B. McCord, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, RANDOLPH, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: This appeal from a criminal
conviction exposes a problem in the provisions setting penal-
ties for cocaine offenses. A jury found George Brisbane
guilty of distributing five or more grams of ‘‘cocaine base,’’ in
violation of 21 U.S.C. § 841. Because of Brisbane’s status as
a career offender, the district court sentenced him to 360
months’ imprisonment. Punishment for violating § 841 de-
pends on the weight of drugs involved in the offense. A
certain quantity of ‘‘cocaine base’’ will trigger much stiffer
penalties than an equivalent quantity of ‘‘cocaine, its salts,
optical and geometric isomers, and salts of isomers.’’ Com-
pare 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (B)(ii)(II) (‘‘subsection
(ii)’’) with 21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii) (‘‘subsection
(iii)’’). The problem is that, chemically, ‘‘cocaine’’ and ‘‘co-
caine base’’ mean the same thing.
Cocaine is a naturally occurring alkaloid – that is, a base –
found in the leaves of the coca plant.1 The leaves typically
undergo extensive processing before reaching the United
States. Processors shred the leaves and mash them with a
strong alkali (like lime), a solvent (like kerosene), and sulfuric
acid. The result is a light brown paste containing cocaine
base (cocaine in its natural alkaloid form) and a number of
other chemicals. The cocaine paste is processed with hydro-
chloric acid to create a salt, cocaine hydrochloride, a white or
1 The following sources, from which we have drawn, provide
scientific and technical information on cocaine: EDITH FAIRMAN
COOPER, THE EMERGENCE OF CRACK COCAINE ABUSE (2002); Marian
W. Fischman, Coca Paste, in ENCYCLOPEDIA OF DRUGS, ALCOHOL &
ADDICTIVE BEHAVIOR 264 (2d ed., Rosalyn Carson–DeWitt ed., 2001)
(‘‘Drug Encyclopedia’’); Marian W. Fischman, Coca Plant, in Drug
Encyclopedia at 265; Marian W. Fischman, Cocaine, in Drug
Encyclopedia at 267; PAUL M. GAHLINGER, ILLEGAL DRUGS: A
COMPLETE GUIDE TO THEIR HISTORY, CHEMISTRY, USE AND ABUSE 239–61
(4th ed. 2004); THOMAS NORDEGREN, THE A–Z ENCYCLOPEDIA OF
ALCOHOL AND DRUG ABUSE 180–85 (2002); United States Sentencing
Commission, COCAINE AND FEDERAL SENTENCING POLICY (2002).
3
off-white powder. It is usually this powder that is shipped to
the United States, where it is known colloquially as ‘‘cocaine.’’
Users generally consume powdered cocaine by snorting it.
Since cocaine hydrochloride is water soluble, the nasal mu-
cous membranes absorb the chemical, allowing it to enter the
blood stream and eventually reach the brain. Users can also
apply the powder to other mucous membranes, or dissolve it
in water and inject it intravenously. But they cannot smoke
it. The temperature at which cocaine hydrochloride evapo-
rates is higher than the temperature at which its active
ingredient breaks down.
Cocaine base, on the other hand, can be smoked. The
ability to smoke the drug is important because smoking
produces a quicker, shorter, and more intense high than
snorting. This makes it much more addictive. Smoking
cocaine paste, which contains cocaine base, is common in the
Andes but rare in the United States because cocaine is
generally imported in its powdered, nonsmokable form.
Beginning in the early 1970s, American drug dealers devel-
oped several methods to free cocaine base from cocaine
hydrochloride so that it could be smoked. The most common
method used to produce this ‘‘freebase’’ cocaine involved
flammable substances and could result in dangerous explo-
sions. This danger, along with the high price of cocaine,
limited freebase’s popularity.
In the mid–1980s, a new form of smokable cocaine became
widely available. Known by the street name ‘‘rock’’ or
‘‘crack,’’ this form was much easier to manufacture than other
forms of freebase because the process did not involve volatile
chemicals. Also, unlike the ‘‘traditional’’ method of making
freebase, the ‘‘baking soda method’’ used to make crack did
not remove impurities and adulterants present in the powder.
These characteristics combined to produce a highly addictive
form of smokable cocaine that was far cheaper than either
powder or freebase had ever been. While cost had previously
limited cocaine use to people of means, crack made it avail-
able to large numbers of young and low-income users.
4
Crack spread rapidly through several large cities. In 1986,
Congress passed the Anti–Drug Abuse Act of 1986, Pub. L.
No. 99–570, 100 Stat. 3207, without such normal deliberative
processes as committee hearings and reports. See United
States Sentencing Commission, COCAINE AND FEDERAL SEN-
TENCING POLICY 5–6 (2002) (‘‘Sentencing Commission Report’’).
Among other measures, the statute purported to impose
much higher sentences for crack than for powdered cocaine.
Id. at 4–5.
The statute established the quantities of ‘‘cocaine, its salts
TTT’’ that would trigger various penalty tiers. But rather
than describing crack by street name or manufacturing pro-
cess, the statute established lower thresholds for any ‘‘mix-
ture containing cocaine base.’’ Because ‘‘cocaine’’ and ‘‘co-
caine base’’ carry the same chemical meaning (the word
‘‘base’’ merely refers to the fact that cocaine is a base), the
statute appears ambiguous, providing two different sets of
penalties for the same offense. If the ambiguity remains
unresolved, the rule of lenity would suggest imposition of the
lower sentence. See, e.g., United States v. Ray, 21 F.3d 1134,
1140 (D.C. Cir. 1994).
Despite the fact that § 841 is the frequent subject of
judicial opinions, the issue just identified has rarely arisen,
for two reasons. The first is that the vast majority of cocaine
base prosecutions involve crack. Whatever Congress meant
by ‘‘cocaine base,’’ there can be no doubt that it meant to
include crack. United States v. Brown, 859 F.2d 974, 976
(D.C. Cir. 1988). Second, the Sentencing Guidelines define
‘‘cocaine base’’ as meaning only crack, and apply the lower
penalties to other forms of cocaine base. U.S.S.G.
§ 2D1.1(c)(D). In most cases involving cocaine base that is
not crack, the ambiguity therefore has no practical conse-
quence.
Brisbane’s case is different. After the government rested,
Brisbane moved for a judgment of acquittal, arguing that the
government had not proven the substance was crack as
alleged in the indictment. (The indictment alleged that he
distributed ‘‘cocaine base, also known as crack.’’) The gov-
5
ernment’s expert witness, a forensic chemist, testified that
the substance was 49 percent cocaine base, but she had done
no tests to determine whether it was crack and could not say
that it was. The district court ruled that the government had
failed to prove that the substance was crack, a ruling it later
characterized as a partial judgment of acquittal. But the
court ruled that the government had offered enough evidence
to support a guilty verdict for distribution of ‘‘cocaine base,’’
rejecting the defendant’s argument that ‘‘cocaine base’’ as
used in § 841 meant crack only.
Had Brisbane been sentenced under the drug sentencing
guidelines, he would have received the lower sentence for
distribution of ‘‘cocaine.’’ But Brisbane is a career offender.
The career offender guidelines determine the sentencing
range by reference to the statutory maximum sentence for
the offense of conviction. See U.S.S.G. § 4B1.1. The district
court calculated Brisbane’s sentence using 21 U.S.C.
§ 841(b)(1)(B)(iii), which provides for a maximum life sen-
tence for defendants with prior drug offenses convicted of
distributing five or more grams of ‘‘cocaine base.’’ To deter-
mine whether the evidence presented at Brisbane’s trial was
sufficient to support his conviction, we therefore must con-
front the ambiguity in § 841.
Four of the courts of appeals to consider this issue read
‘‘cocaine base’’ to include all base forms of cocaine and
‘‘cocaine, its salts TTT’’ to mean only cocaine hydrochloride.
See United States v. Barbosa, 271 F.3d 438, 461–67 (3d Cir.
2001); United States v. Butler, 988 F.2d 537, 542–43 (5th Cir.
1993); United States v. Jackson, 968 F.2d 158, 161–63 (2d
Cir. 1992); United States v. Easter, 981 F.2d 1549, 1558 (10th
Cir. 1992). Similar statements appear in dicta in this court’s
opinion in Brown, 859 F.2d at 975–76. As a purely textual
matter, this interpretation is far from convincing. Since
cocaine hydrochloride is a salt, it is covered by subsection
(ii)’s reference to ‘‘its salts.’’ Unless the word ‘‘cocaine’’ in
subsection (ii) has no meaning of its own, it must refer to
cocaine in its natural form – cocaine base. If the words in
subsection (ii) carry their ordinary scientific meaning, the
statute is unquestionably ambiguous.
6
As we have said, the rule of lenity suggests that we should
resolve ambiguities in a defendant’s favor. But before we
may apply that doctrine, we must examine the statute’s
‘‘structure, legislative history, and motivating policies.’’ Mos-
kal v. United States, 498 U.S. 103, 108 (1990) (citations
omitted). There is much evidence that Congress intended
‘‘cocaine base’’ to mean something different from ‘‘cocaine’’ –
it was targeting crack. See United States v. Edwards, 98
F.3d 1364, 1369 (D.C. Cir. 1996); Brown, 859 F.2d at 976;
Sentencing Commission Report at 4–5 & n.17; Cooper, supra
note 1, at 60–62. The legislative debates suggest that at least
some members of Congress had in mind two characteristics
that distinguished crack from older forms of cocaine. First,
unlike powdered cocaine, crack could be smoked, making it
more potent and addictive. See, e.g., Sentencing Commission
Report at 9–10. Second, crack’s low cost and ease of manu-
facture made it more widely available than other forms of
smokable cocaine, especially among the nation’s youth. See,
e.g., United States v. Booker, 70 F.3d 488, 494 n.21 (7th Cir.
1995); Sentencing Commission Report at 9–10.2
In this light, a ‘‘literal’’ approach to interpreting ‘‘cocaine
base’’ would be problematic. Congress could hardly have
intended to apply the enhanced penalties to forms of cocaine
base that are not smokable or even consumable without
further processing, while imposing the lesser penalties on
defendants dealing in similar amounts of ready-to-snort co-
caine hydrochloride. United States v. Lopez–Gil, 965 F.2d
1124 (1st Cir. 1992), illustrates the point. The defendant was
arrested with cocaine base secreted within the fibers of his
suitcase. He was using this ‘‘mixture containing cocaine
base’’ only for transport; the substance could not be con-
sumed without further processing. Id. at 1132 (Brown, J.,
concurring and dissenting in part). Nevertheless, under a
‘‘literal’’ approach, the defendant would receive a far higher
2 The Sentencing Commission Report lists five congressional
purposes for targeting crack for harsher treatment, but they all
amount to some version of these two important ones. See Sentenc-
ing Commission Report at 9–10.
7
sentence than if he had been caught with powdered cocaine
ready for retail distribution.3 See also Butler, 988 F.2d at
542 (cocaine base ‘‘soft, mushy, and a bit wet’’); United States
v. Munoz–Realpe, 21 F.3d 375, 376 (11th Cir. 1994) (cocaine
base ‘‘in liquid form’’).
In light of these unusual circumstances we therefore reject
the ‘‘literal’’ approach. There are two other options. First,
‘‘cocaine base’’ could mean only crack. By focusing on the
only form of cocaine that is both smokable and widely avail-
able, this approach comes closest to matching what appears to
be the purpose of the statute. It also aligns the statutory
definition with the guidelines definition, eliminating the po-
tential for gross disparities between the guidelines range and
both mandatory minimums and career offender sentences.
But this approach may be too narrow. At this point, crack
appears to be the only form of smokable cocaine that is cheap
and easy to manufacture. Yet as the development of crack
itself demonstrates, it is hazardous to predict what this illicit
‘‘industry’’ will come up with next. It may be that tomorrow
someone will invent a method of preparing smokable cocaine
to replace the ‘‘baking soda method’’ used to prepare crack.
See Lopez–Gil, 965 F.2d at 1134–35 (on rehearing). Given the
statute’s use of the broad term ‘‘cocaine base,’’ it is unlikely
Congress intended to limit the enhanced penalty provisions to
one manufacturing method.
The second option is that ‘‘cocaine base’’ means any cocaine
that is smokable. This is the approach the Ninth Circuit took
in United States v. Shaw, 936 F.2d 412 (1991). In addition to
crack, it includes in the definition ‘‘traditional’’ freebase co-
caine and cocaine paste.4 The Ninth Circuit’s approach
3 The Lopez-Gil court originally ruled that ‘‘cocaine base’’ meant
only crack, vacating the defendant’s sentence. 965 F.2d at 1130–31.
The court reversed itself on rehearing. Id. at 1134–35 (on rehear-
ing).
4 It is true that cocaine paste may be made into cocaine powder,
and that a defendant caught just before the conversion would
receive a higher penalty under the Ninth Circuit’s approach. This
difference comports with what we perceive to have been Congress’
8
avoids the difficulties inherent in the ‘‘literal’’ approach while
not unduly narrowing the operation of the statute. Also,
there is no question that smokability was extremely impor-
tant in distinguishing crack from powdered cocaine. But it is
also fairly clear that smokability alone would not have made
crack as compelling a legislative target. Wide availability
was also critical in distinguishing crack from its chemical
cousins. Smokable cocaine existed long before the mid–
1980s. Yet before the advent of crack, Congress did not
punish it more severely than powdered cocaine. Congress
also has never distinguished between snorting cocaine hydro-
chloride and injecting it, even though injection produces the
same short, intense, and addictive high as smoking cocaine
base. This is probably because the potential market for these
drug-taking methods is limited. Traditional freebase (smoka-
ble) cocaine is dangerous to manufacture and, like powdered
cocaine, extremely expensive; cocaine paste smoking never
caught on in the United States; and there may be a social
stigma against injecting drugs intravenously, even among
drug users.
But we need not choose between the two options because
both lead to the same result. Here the government did not
prove that the substance distributed was smokable and it did
not prove that it was crack.5 Brisbane’s conviction for violat-
ing § 841(b)(1)(B)(iii) therefore cannot stand.
There remains the issue of remedy. Distribution of ‘‘co-
caine’’ is a lesser included offense of distribution of ‘‘cocaine
base.’’ The elements of the latter offense include all the
elements of the former, plus proof that the type of cocaine is
‘‘cocaine base’’ within the meaning of subsection (iii). See
Kelly v. United States, 370 F.2d 227, 228 (D.C. Cir. 1966).
There is no doubt that the government’s evidence sufficiently
intent. The defendant would be rendering cocaine paste into a
form that Congress treated as less dangerous.
5The government argues that the chemist’s testimony, along with
other evidence, did prove the substance was crack. But the govern-
ment cannot appeal the district court’s partial judgment of acquittal.
See Sanabria v. United States, 437 U.S. 54, 64 (1978).
9
supported Brisbane’s conviction for distributing ‘‘cocaine,’’
although the evidence did not support his conviction for
distributing ‘‘cocaine base’’ as that term may be understood
under either of the options discussed above.
A court of appeals ‘‘may TTT modify TTT any judgment TTT
lawfully brought before it for review, and may remand the
cause and direct the entry of such appropriate judgment TTT
as may be just under the circumstances.’’ 28 U.S.C. § 2106.
We therefore have ‘‘the power to modify a criminal judgment
to reduce the conviction to that of a lesser included offense,
where the evidence fails to support one element of the crime
of which appellant was charged and convicted but sufficiently
sustains all the elements of the included offense.’’ Austin v.
United States, 382 F.2d 129, 142 (D.C. Cir. 1967). ‘‘[T]his
power should be exercised only when it is clear that no undue
prejudice will result to the accused.’’ Id. There is no
prejudice here. By convicting Brisbane of distributing ‘‘co-
caine base,’’ the jury necessarily concluded that the drugs
involved were some form of cocaine. The jury’s conclusion
would not have changed even if the district court had given
instructions directed at subsection (ii) instead of subsection
(iii).6
6 Brisbane has three other arguments for reversing his conviction,
none of which are persuasive. He claims the district court erred in
dismissing two jurors during the trial. The court found that one
juror had prejudged an issue in Brisbane’s favor, and that both had
discussed the case in violation of the court’s instructions and then
lied to the court about doing so. In light of the district court’s
detailed explanations for its decision and its credibility findings,
there was no abuse of discretion. Compare United States v.
Johnson, 657 F.2d 604, 606 (4th Cir. 1981) (upholding similar
dismissal), with United States v. Donato, 99 F.3d 426, 429 (D.C. Cir.
1996) (reversing when district court did not provide adequate
explanation).
Brisbane argues the district court should not have considered his
past attempt at a ‘‘walk-away’’ escape in determining his career
offender status because such an escape is not a ‘‘crime of violence’’
under the sentencing guidelines. See U.S.S.G. § 4B1.2. But noth-
10
Accordingly, we vacate Brisbane’s conviction for distribut-
ing ‘‘cocaine base’’ and remand the case to the district court
with instructions to enter a judgment of conviction for distrib-
uting ‘‘cocaine’’ and to sentence accordingly.
So ordered.
ing in the record indicates the district court relied on the escape to
determine whether Brisbane was a career offender.
Brisbane challenges the use of his two other convictions in
sentencing, arguing that Apprendi v. New Jersey, 530 U.S. 224
(1998), required the government to allege the existence of the
convictions in the indictment and to prove them to the jury beyond
a reasonable doubt. The law is otherwise. United States v. Webb,
255 F.3d 890, 897–98 (D.C. Cir. 2001).