United States v. Alton ( 1995 )

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Precedential or Non-Precedential: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.