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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2004 Decided August 20, 2004
No. 02-3102
UNITED STATES OF AMERICA,
APPELLEE
v.
ALFRED ELI, A/K/A BEGOD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00292–01)
James M. Johnstone, appointed by the court, argued the
cause and filed the briefs for appellant.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, and John R. Fisher and Mary A. Snow,
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
Assistant U.S. Attorneys. Mary B. McCord, Assistant U.S.
Attorney, entered an appearance.
Before: EDWARDS, GARLAND, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Alfred Eli, who is serving a 121-
month prison sentence, contends that his counsel was ineffec-
tive in failing to argue that the substance he distributed was
not ‘‘crack cocaine,’’ but rather a form of cocaine for which a
lower sentence should have been imposed. Because we af-
firm the district court’s finding that Eli did, in fact, distribute
crack cocaine, we conclude that he suffered no prejudice as a
result of his counsel’s alleged failure.
I
On July 17, 1997, a federal grand jury issued a three-count
indictment charging Eli with violating 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(iii) by distributing 50 grams or more of ‘‘a
mixture and substance containing a detectable amount of
cocaine base, also known as crack,’’ to an undercover police
officer on three separate occasions: March 6, 1997 (Count
One); March 13, 1997 (Count Two); and April 2, 1997 (Count
Three).1 On December 12, 1997, Eli entered a plea of guilty
to Count One of the indictment pursuant to a written plea
agreement. Under the agreement, Eli conceded, inter alia,
that he: (1) distributed more than 50 grams of ‘‘Cocaine Base
(‘crack’), in violation of 21 U.S.C. § 841(a)(1) and
§ 841(b)(1)(A)(iii)’’; (2) was accountable ‘‘for at least 150 but
less than 500 grams of cocaine base, also known as ‘crack’ ’’
for purposes of the United States Sentencing Guidelines; and
(3) was subject to a ‘‘possible penalty of not less than ten
years’’ in prison. Plea Agreement ¶¶ 1, 2 (Dec. 12, 1997). In
1According to the Presentence Investigation Report (PSR), Eli’s
March 6th and 13th sales each involved approximately 62 grams of
cocaine base, and his April 2nd sale involved 125.4 grams of cocaine
base. See PSR ¶ 3.
3
return, the government agreed to dismiss the indictment’s
two remaining counts and not to oppose Eli’s request for a 3-
level reduction in his guidelines offense level for acceptance of
responsibility.
The district court conducted the plea hearing required by
Rule 11 of the Federal Rules of Criminal Procedure and
accepted Eli’s guilty plea. In the course of the hearing, Eli
agreed that: he had read the charges in the indictment with
his attorney; he understood those charges; he realized that
he faced a mandatory minimum of ten years in prison; and he
had, in fact, distributed crack cocaine. Eli assented to the
final point several times. See, e.g., 12/12/97 Tr. at 6, 9, 16-20.
Based on these admissions, the district court adjudged Eli
guilty of ‘‘Count One of the indictment charging unlawful
distribution of cocaine base, or crack on March 6th, 1997.’’
Id. at 21.
The court sentenced Eli on April 2, 1998. It found that
Eli’s offense — distributing ‘‘between 150 and 500 grams of
crack cocaine’’ — corresponded to a guidelines offense level of
34. 4/2/98 Tr. at 9; see U.S.S.G. § 2D1.1(c)(3) (drug quantity
table) (1997). The court decreased that offense level by 3
because Eli had accepted responsibility for his crime by
pleading guilty, resulting in an adjusted offense level of 31.
See U.S.S.G. § 3E1.1(a)-(b). Combined with Eli’s criminal
history category of II, this adjusted offense level yielded a
guidelines sentencing range of 121-151 months in prison. See
U.S.S.G. ch. 5, pt. A (sentencing table). The court then
sentenced Eli to 121 months’ incarceration — the bottom of
the guidelines range and just one month more than the plea
agreement had identified as the statutory minimum for the
offense. Plea Agreement ¶ 1; see 21 U.S.C.
§ 841(b)(1)(A)(iii). Although the court advised Eli of his
right to appeal, neither Eli nor his counsel filed a notice of
appeal within the 10-day period fixed by Federal Rule of
Appellate Procedure 4(b)(1)(A).
A year later, on April 5, 1999, Eli filed a pro se motion to
vacate, set aside, or correct his sentence, pursuant to 28
4
U.S.C. § 2255, on the ground that his defense counsel had
been constitutionally ineffective. The district court appointed
an attorney to represent Eli, who supplemented Eli’s initial
motion and filed two additional motions. As supplemented,
Eli’s motion charged that his original counsel had been inef-
fective by failing to note a timely appeal from his conviction,
by failing to advise Eli that there was an issue regarding
whether the substance he sold was ‘‘crack cocaine’’ within the
meaning of the Sentencing Guidelines, and by failing to
contest drug identity at sentencing. The additional motions,
based on the Supreme Court’s opinion in Apprendi v. New
Jersey, 530 U.S. 466 (2000), contended that: (1) if the court
were to order a resentencing, the government should be
required to prove that Eli sold crack cocaine beyond a
reasonable doubt; and (2) the statute under which Eli was
sentenced, 21 U.S.C. § 841, is unconstitutional.2
Following an evidentiary hearing conducted on May 30 and
31, 2001, the district court granted Eli’s § 2255 motion with
respect to his counsel’s failure to file a timely notice of appeal,
but denied all of Eli’s other claims. See United States v. Eli,
227 F. Supp. 2d 90 (D.D.C. 2002). In particular, the court
found, ‘‘beyond a reasonable doubt,’’ that Eli distributed
‘‘crack cocaine.’’ Id. at 101. Pursuant to 28 U.S.C. § 2253,
the court issued a certificate of appealability with respect to
the denied claims, and Eli filed a timely notice of appeal.3
2In Apprendi, the Court held that ‘‘any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.’’
530 U.S. at 490.
3 In light of its decision to grant Eli’s § 2255 motion with respect
to counsel’s failure to file an appeal, and in order to give Eli an
opportunity to appeal anew, on October 31, 2002, the district court
resentenced Eli to the same sentence he had received in 1998.
Although Eli noted an appeal both from the resentencing and from
the denial of his § 2255 motion, his briefs address only the latter.
5
II
In this court, Eli seeks reversal of the district court’s denial
of his claims that his original counsel was constitutionally
ineffective because: ‘‘(1) he advised defendant to plead guilty
to one count of the indictment without advising him that
‘cocaine base’ and ‘crack’ were not the same thing or that the
government had to prove that the substance was ‘crack,’ and
(2) [he] made no attempt to raise this issue’’ at sentencing.
Appellant’s Br. at 6. Notwithstanding the first claim of
ineffective assistance, however, Eli most emphatically does
not want his plea vacated.4 To the contrary, the only preju-
dice he asserts is the length of his sentence, and the only
relief he seeks is a lower sentence to reflect the fact that the
substance he distributed was not ‘‘crack.’’ Id. at 25.5
4 See Oral Arg. Tape at 2:50, 3:21, 3:51 (D.C. Cir. Feb. 9, 2004);
Eli, 227 F. Supp. 2d at 95 (‘‘At the hearing on the motion TTT the
defendant made it absolutely clear that he does not and did not ever
wish to withdraw his guilty plea.’’ (citing 5/30/01 Tr. at 4-5, 7)); Mot.
to Vacate, Set Aside, or Correct Sentence at 19 (Apr. 5, 1999). The
government attributes Eli’s position to the fact that, as a result of
the plea, he received a 3-level reduction in his offense level for
acceptance of responsibility, which translates into a sentence reduc-
tion of at least 47 months.
5 A footnote to Eli’s brief mentions two other arguments that he
concedes ‘‘are not viable in this Court,’’ but that he wishes to
‘‘preserve TTT for possible Supreme Court review.’’ Appellant’s Br.
at 25 n.11. The first is his contention that Apprendi requires that a
sentencing court find beyond a reasonable doubt — even at a
sentencing pursuant to a plea — that the substance involved in the
offense was crack. Even if that claim were correct, but see United
States v. Leachman, 309 F.3d 377, 384 (6th Cir. 2002) (holding that
by pleading guilty, a defendant forfeits ‘‘his right to a jury TTT and
his right to have every element of his offense proven beyond a
reasonable doubt’’) (internal citation omitted), it is moot in light of
the district court’s ‘‘beyond a reasonable doubt’’ finding, 227 F.
Supp. 2d at 101, which we conclude was not clearly erroneous. Eli’s
second contention is that Apprendi renders 21 U.S.C. § 841 facially
unconstitutional. Eli offers no argument, but merely cites the
decision of a Ninth Circuit panel that was later overruled by the en
6
We consider ineffective assistance of counsel claims pursu-
ant to the two-pronged test enunciated in Strickland v.
Washington, 466 U.S. 668 (1984). ‘‘First, the defendant must
show that counsel’s performance was deficientTTTT Second,
the defendant must show that the deficient performance
prejudiced the defense.’’ 466 U.S. at 687. The latter prong
requires the defendant to demonstrate that ‘‘there is a rea-
sonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different.’’
Id. at 694; see Glover v. United States, 531 U.S. 198, 200
(2001) (holding that ‘‘if an increased prison term did flow from
an error the petitioner has established Strickland prejudice’’).
As both parties agree, we review the factual findings that
underpin a district court’s legal conclusions regarding ineffec-
tive assistance only for clear error. See United States v.
Taylor, 339 F.3d 973, 978 (D.C. Cir. 2003); United States v.
Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996).
Although the government raises a multitude of arguments
in opposition to Eli’s claim of ineffective assistance, the
district court has thoughtfully provided a simple and direct
route to resolving this appeal. After an evidentiary hearing,
the court found that the substance Eli distributed was in fact
‘‘crack cocaine.’’ 227 F. Supp. 2d at 101. If that finding
survives review, Eli cannot satisfy the Strickland test be-
cause, even if his counsel’s performance were deficient (a
point we do not address), Eli cannot show that he was
prejudiced in the manner he contends. We therefore proceed
directly to the question of the substance’s identity.
banc court. See United States v. Buckland, 259 F.3d 1157 (9th Cir.
2001), rev’d en banc, 289 F.3d 558 (9th Cir. 2002). Every circuit
that has considered this contention has rejected it, see United
States v. Outen, 286 F.3d 622, 634 (2d Cir. 2002) (collecting cases),
and this circuit has continued to uphold § 841 convictions post-
Apprendi, see, e.g., United States v. Gibson, 353 F.3d 21, 28 (D.C.
Cir. 2003). Nothing in the cited panel decision persuades us to do
otherwise here.
7
III
A
Under the Sentencing Guidelines, the sentencing range for
a defendant convicted of a narcotics offense depends upon
the amount and identity of the drug he distributed during
the offense charged in the count of conviction, as well as in
the course of related conduct. See U.S.S.G. § 2D1.1(a)(3)
(base offense level); id. § 2D1.1(c) (drug quantity table). Eli
concedes that he is accountable for the distribution of ap-
proximately 250 grams of a mixture or substance containing
‘‘cocaine base.’’ Since 1993, however, the guidelines have dis-
tinguished between the broader term ‘‘cocaine base’’ and the
form of cocaine base known as ‘‘crack.’’ See id. § 2D1.1(c),
Note (D). For someone with Eli’s criminal history who
accepts responsibility for his conduct, the guidelines sentenc-
ing range for distributing 250 grams of ‘‘crack’’ is 121-151
months — the range that the court applied to Eli and that
led to his 121-month sentence. The corresponding range for
250 grams of cocaine base not in the form of crack is 27-33
months — the same range applicable to powder cocaine
(cocaine hydrochloride).
The guidelines sentencing ranges are also driven, in sub-
stantial part, by the mandatory minimum sentencing provi-
sions of 21 U.S.C. § 841(b)(1). Subsection 841(b)(1)(A)(iii)
imposes a mandatory minimum 10-year sentence for a viola-
tion involving ‘‘50 grams or more’’ of a mixture or substance
‘‘which contains cocaine base.’’ If the drug is a form of
cocaine not within the statutory meaning of ‘‘cocaine base,’’
there is no mandatory minimum at all unless at least 500
grams are involved. See 21 U.S.C. § 841(b)(1)(B)(ii); see also
id. § 841(b)(1)(A)(ii). Eli’s total was only 249.4 grams.
A 1993 amendment to the Sentencing Guidelines, incorpo-
rated in Note (D) to the Drug Quantity Table, provides the
following definition:
‘‘Cocaine base,’’ for purposes of this guideline, means
‘‘crack.’’ ‘‘Crack’’ is the street name for a form of
cocaine base, usually prepared by processing cocaine
8
hydrochloride and sodium bicarbonate, and usually ap-
pearing in a lumpy, rocklike form.
U.S.S.G. § 2D1.1(c), Note (D). The Sentencing Commission
explained the reason for the amendment as follows:
This amendment provides that, for purposes of the guide-
lines, ‘‘cocaine base’’ means ‘‘crack.’’ TTT Under this
amendment, forms of cocaine base other than crack (e.g.,
coca paste, an intermediate step in the processing of coca
leaves into cocaine hydrochloride, scientifically is a base
form of cocaine, but it is not crack) will be treated as
cocaine.
U.S.S.G. App. C, Amend. 487; see United States v. Washing-
ton, 115 F.3d 1008, 1010-11 (D.C. Cir. 1997) (noting that, for
guidelines purposes, ‘‘cocaine base’’ means ‘‘crack’’).
At the time this appeal was argued, this court had not yet
addressed whether the statutory term ‘‘cocaine base,’’ which
designates the drug subject to the 10-year mandatory mini-
mum provision of § 841(b)(1)(A)(iii), has the same meaning
that the Sentencing Guidelines ascribe to the term: i.e., that
‘‘ ‘cocaine base’ means ‘crack,’ ’’ U.S.S.G. § 2D1.1(c), Note (D).
Subsequent to oral argument, however, another panel of this
court addressed and partially resolved the question. In
United States v. Brisbane, the court first rejected the possi-
bility that, for purposes of the statute, ‘‘ ‘cocaine base’ TTT
include[s] all base forms of cocaine.’’ 367 F.3d 910, 913 (D.C.
Cir. 2004). It then identified ‘‘two other options’’:
First, ‘‘cocaine base’’ could mean only crack[,]TTTT the
only form of cocaine that is both smokable and widely
availableTTTT The second option is that ‘‘cocaine base’’
means any cocaine that is smokableTTTT In addition to
crack, [this] includes in the definition ‘‘traditional’’ free-
base cocaine and cocaine paste.
Id. at 914. In the end, the Brisbane court concluded that it
‘‘need not choose between the[se] two options,’’ because ‘‘the
government did not prove that the substance distributed was
smokable and it did not prove that it was crack.’’ Id. The
9
parties have filed supplemental submissions concerning Bris-
bane’s applicability to Eli’s appeal.
B
There may be cases in which it will be difficult to determine
whether a particular batch of ‘‘cocaine base’’ falls within the
definition of that term as it is used in the Sentencing Guide-
lines and/or the 10-year mandatory minimum provision of
§ 841(b)(1)(A)(iii). But this is not such a case, thanks in large
part to the diligent district judge who, after conducting an
extensive evidentiary hearing, made findings that ‘‘covered all
the bases’’ — so to speak. Following that hearing, the judge
found that Eli had distributed ‘‘crack cocaine.’’ Eli, 227 F.
Supp. 2d at 101. That finding places Eli squarely within the
enhanced sentencing provisions of both the guidelines and the
statute.
The district court’s determination relied upon, and was well
supported by, the evidence produced at the hearing.6 First,
the government chemist testified, and Eli did not dispute,
that Eli’s drugs tested positive for cocaine base. See PSR
¶ 3. Second, both the Drug Enforcement Agency’s (DEA’s)
lab report and the U.S. Probation Office’s Presentence Inves-
tigation Report (to which Eli acceded) stated that the drugs
recovered in the sales were ‘‘rock-like.’’ 227 F. Supp. 2d at
96 (citing PSR ¶ 3); see DEA Form 7 (3/7/97); id. (3/14/97);
id. (4/3/97). Third, the chemist indicated that the drugs were
smokable. See 5/30/01 Tr. at 187. Finally, he concluded that
the drugs were properly identified as crack cocaine. Id. at
179, 180. Whatever distinctions there may be in the various
definitions of ‘‘cocaine base,’’ this evidence suffices to support
6To the extent there were disputes among the parties’ experts,
the district court gave ‘‘greater weight to the testimony’’ of the
government’s expert, who, unlike Eli’s experts, had ‘‘first-hand
experience in evaluating thousands of drug samples.’’ Eli, 227 F.
Supp. 2d at 97 n.5. We see nothing unreasonable or clearly
erroneous in that determination.
10
the conclusion that the substance Eli sold was ‘‘crack.’’7
Eli contests this conclusion on three grounds. First, he
notes that lab tests showed that the drugs were relatively
impure — between 36 and 44 percent cocaine base — and
asserts that crack cocaine is usually 70-90 percent cocaine
base. But the district court concluded that the low purity did
not disqualify the drugs as crack, relying on the chemist’s
testimony that, while the purity was somewhat lower than the
typical purity of 50-60 percent, he had tested crack of sub-
stantially lower purity. Eli, 227 F. Supp. 2d at 97 (citing
5/30/01 Tr. at 178-80, 186). We see no error in that determi-
nation. Cf. U.S. Sentencing Commission, COCAINE AND FEDER-
AL SENTENCING POLICY 17 (2002) (noting that the ‘‘processes
used by some crack cocaine manufacturers TTT introduce
7 Eli claims that an additional element of the definition of crack is
proof that the substance would ‘‘pass[ ] for ‘crack’ ’’ on the street.
Appellant’s Br. at 19. Even if that were correct (a point we do not
decide), this requirement was satisfied by Eli’s repeated acknowl-
edgment — both in his written plea agreement and during the Rule
11 plea hearing and colloquy — that the substance was ‘‘crack,’’ and
by the fact that Eli sold the drugs as ‘‘crack’’ to an undercover
officer he thought was a street purchaser. See Eli, 227 F. Supp. 2d
at 95-96. In light of the strength of the government’s other
evidence, we need not decide whether Eli’s statements also com-
pletely waive his claim that the substance did not meet the legal
definition of ‘‘crack.’’ Eli maintains that the statements cannot be
given that effect because his counsel did not advise him of the legal
distinctions among the forms of cocaine base, and hence the state-
ments were not ‘‘knowing and intelligent.’’ Compare United States
v. Stafford, 258 F.3d 465, 472-74 (6th Cir. 2001) (relying on a
defendant’s statements at a plea hearing to conclude that the drug
involved was crack cocaine), with United States v. Garrett, 189 F.3d
610, 612 (7th Cir. 1999) (vacating a sentence where the record did
‘‘not demonstrate adequately that [the defendant’s] admission was
knowing and therefore capable of establishing that the drug in-
volved was crack rather than another form of cocaine base’’); cf.
Washington, 115 F.3d at 1010-11 (finding no plain error in the
district court’s determination that the distributed drug was crack
cocaine, where both the PSR and the defendant at the plea hearing
referred to it as such).
11
impurities resulting in a product less pure than the powder
cocaine from which it was derived’’).
Second, Eli notes that at least one of the samples contained
traces of dimethyltrephalate (DMT), and argues that the
sample cannot be classified as crack because the DMT would
render it unsmokable. According to Eli’s experts, DMT
emits fumes that would irritate a user’s eyes and respiratory
tract. The district court, however, found that the presence of
DMT did ‘‘not support the conclusion that these drugs could
not be ‘used’ as crack cocaine — i.e., smoked by a user to
introduce the drugs into his body.’’ 227 F. Supp. 2d at 98. It
made that finding based on testimony by the government
chemist indicating that the substance would still be smokable
because cocaine base has a lower melting point than DMT,
and hence when burned would ‘‘ ‘come out’ of the mixture’’
first. Id. (quoting 5/30/01 Tr. at 181); see 5/30/01 Tr. at 173-
74.8 Although Eli rejects this testimony on the ground that
the chemist did not attempt to smoke the substance himself,
we can hardly insist that a government chemist smoke a drug
sample in order to certify its identity.
Finally, Eli argues that, because lab tests showed that the
April 2nd sample contained traces of sodium borate, that
sample did not satisfy the definition of crack. The district
court concluded that the presence of sodium borate did not
undermine the conclusion that the substance was crack, in
light of the chemist’s testimony that he: (1) had successfully
used sodium borate rather than sodium bicarbonate to con-
vert powder cocaine into crack in a laboratory setting; (2)
had personally found sodium borate in other crack samples;
and (3) was aware that sodium borate had been detected in
crack samples by other chemists nationwide. 227 F. Supp. 2d
at 97 (citing 5/30/01 Tr. at 166-67, 172, 180-81, 187). The
8The court also noted the chemist’s testimony that ‘‘DMT has
been found in cocaine samples 1211 times since 1966, and of these
1211 instances, 90 percent were cocaine base samples.’’ Eli, 227 F.
Supp. 2d at 98 (citing 5/30/01 Tr. at 167-68).
12
court’s conclusion was reasonable. The Sentencing Guide-
lines do not insist that crack can be made only with sodium
bicarbonate; they merely state that it is ‘‘usually prepared’’
that way. U.S.S.G. § 2D1.1(c), Note (D). Nor did Brisbane
exclude the possibility that crack could be made using a
compound other than sodium bicarbonate. See 367 F.3d at
914.
In sum, the district court’s finding that Eli distributed
‘‘crack cocaine’’ — a term that, as used here, satisfies the
definition of ‘‘cocaine base’’ adopted by both the Sentencing
Guidelines and Brisbane for purposes of enhanced sentenc-
ing — is well supported and not clearly erroneous. Hence,
even if Eli’s counsel had advised him of that definition and
raised the issue during the April 2, 1998, sentencing,9 it would
have made no difference in Eli’s sentence.10 Accordingly,
because there is no ‘‘reasonable probability that, but for
counsel’s [alleged] unprofessional errors, the result of the
proceeding would have been different,’’ Eli cannot show that
his counsel was constitutionally ineffective under the second
prong of the Strickland test. 466 U.S. at 694.
9 For the sake of argument, we have assumed that, if Eli’s counsel
had challenged the drugs’ identity at sentencing, the district court
would have permitted the proceeding to go forward under the
existing plea agreement. As the court recognized, however, under
those circumstances the government ‘‘would have viewed Mr. Eli’s
challenge to the identity of the drugs as a breach of the plea
agreement or a matter beyond the Court’s authority then to consid-
er because of the terms of the [plea] agreement.’’ Eli, 227 F. Supp.
2d at 95.
10 We note again that the only prejudice Eli alleges he has
suffered is an inappropriately high sentence, and that he does not
seek to withdraw his guilty plea. See supra note 4; cf. Hill v.
Lockhart, 474 U.S. 52, 59 (1985) (holding that to challenge a guilty
plea based on ineffective assistance of counsel, ‘‘the defendant must
show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on
going to trial’’).
13
IV
For the foregoing reasons, the judgment of the district
court is
Affirmed.