United States v. Irizarry ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-22-2009
USA v. Irizarry
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4735
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 07- 4735
UNITED STATES OF AMERICA
v.
ROBERTO IRIZARRY,
a/k/a Roberto Acevedo
Roberto Irizarry,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-00600-1)
District Judge: Honorable John R. Padova
Submitted Under Third Circuit LAR 34.1(a)
April 21, 2009
Before: SCIRICA, Chief Judge, SLOVITER, and FISHER, Circuit Judges
(Filed: April 22, 2009)
____
OPINION
SLOVITER, Circuit Judge.
Appellant Roberto Irizarry pled guilty to distribution of fifty grams or more of
cocaine base (crack) in violation of 21 U.S.C. § 841. The District Court then imposed the
statutory minimum sentence of ten years. On appeal, Irizarry contends that his sentence
violated the Equal Protection component of the Fifth Amendment’s Due Process Clause.
I.
In July 2003, a confidential source informed investigators from the Drug
Enforcement Agency that she could purchase quarter-pound quantities of crack cocaine
from an individual later identified as Irizarry. On July 11, 2003, the confidential source
purchased approximately 122 grams of crack from Irizarry in a transaction that was
video- and audio-taped. This sale took place within 1,000 feet of a school. After the
confidential source arranged a similar transaction in August 2003, Irizarry was arrested
while in possession of approximately 125 grams of crack.
Irizarry was indicted on four counts of distribution of drugs, two of which related
to distribution within 1,000 feet of a protected location. Irizarry pleaded guilty to Count
One, which related to the July 11, 2003, transaction described above, in exchange for
dismissal of the remaining counts.
At sentencing, Irizarry, who is Hispanic, raised an equal protection challenge to the
mandatory minimum ten-year sentence provided in 21 U.S.C. § 841(b)(1)(A).
Specifically, he argued that § 841(b), which incorporates a 100:1 ratio between crack and
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cocaine powder weights for the purposes of its mandatory minimum sentences, was
racially discriminatory and/or without a rational basis. The District Court rejected those
arguments and sentenced Irizarry to the mandatory minimum sentence on Count One.1
II.
On appeal, Irizarry renews his contention that the statutory mandatory minimum
sentence provided by 21 U.S.C. § 841(b) violates his equal protection rights because,
though facially neutral, § 841(b) was enacted for a racially discriminatory purpose and/or
lacked a rational basis. However, we have previously held that the mandatory minimums
at issue, which were part of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100
Stat. 3207, were not enacted for an impermissible discriminatory purpose and were
1
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
The Government has moved to enforce Irizarry’s appellate
waiver. Irizarry has opposed that motion because his plea
agreement provides that “[t]his waiver is not intended to bar the
assertion of constitutional claims that the relevant case law holds
cannot be waived.” Appeallant’s [sic] Response to Appellee’s
Motion to Enforce Appellate Waiver and for Summary Affirmance
at 1, United States v. Irizarry, No. 07-4735 (3d Cir. Mar. 11, 2008).
We have previously made clear that “a sentence based on
constitutionally impermissible criteria, such as race . . . can be
challenged on appeal even if the defendant executed a blanket
waiver of his appeal rights.” United States v. Gwinnett, 483 F.3d
200, 203 (3d Cir. 2007) (quotation omitted). Thus, Irizarry did not
waive his right to bring the instant appeal.
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supported by a rational basis. United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992).
Irizarry also argues that Congress’ failure to amend § 841’s mandatory minimum
sentences offends equal protection because Congress has been made aware of (1) the
significant disparate impact that the crack/cocaine sentencing differences have on
defendants of racial minority groups and (2) recent data that suggests that crack offenses
do not pose a significantly greater threat to drug users or society than cocaine powder
offenses.
There is some authority to support the notion that an equal protection challenge
may be viable where legislation was not enacted for an impermissible purpose but
Congress subsequently reaffirmed that legislation in the face of evidence that it had a
disparate impact on a protected group or lacked a rational basis. See United States v.
Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring) (suggesting that equal
protection challenge based on crack/cocaine disparity may lie if Congress, “though . . .
made aware of both the dramatically disparate impact among minority groups of
enhanced crack penalties and of the limited evidence supporting such enhanced penalties,
were nevertheless to act affirmatively” to preserve those penalties); see generally Pers.
Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (holding that discriminatory
purpose involves situations in which government “selected or reaffirmed a particular
course of action at least in part because of, not merely in spite of, its adverse effects upon
an identifiable group”) (quotations omitted) (emphasis added).
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Assuming such a claim is cognizable, we cannot conclude that Congress’ failure to
amend § 841 was “because of” a racially discriminatory or otherwise impermissible
purpose. Irizarry relies heavily on the findings of the Sentencing Commission, which has
documented the significant impact of the crack/cocaine sentencing disparity on minority
groups, questioned Congress’ conclusions regarding the relative severity of crack and
cocaine offenses, and recommended (and under the Guidelines, adopted) a reduction in
the crack/cocaine disparity. See U.S. Sentencing Commission, Report to the Congress:
Cocaine and Federal Sentencing Policy 6-9, 15 (2007) (hereafter “2007 Report”);
U.S. Sentencing Guidelines Manual app. C, amend. 706 (Nov. 1, 2007).
Significantly, however, the Sentencing Commission has also found that certain
forms of aggravating conduct, such as the use of weapons and violence, are more
common in crack offenses than cocaine powder offenses; that crack offenders generally
have more extensive criminal histories than cocaine powder offenders; and that the risk of
addiction may be greater for crack than cocaine powder. 2007 Report at 31, 36, 44, 62;
see also Kimbrough v. United States, --- U.S. ----, 128 S. Ct. 558, 568 (2007) (“In the
Commission's view, some differential in the quantity-based penalties for the two drugs is
warranted because crack is more addictive than powder, crack offenses are more likely to
involve weapons or bodily injury, and crack distribution is associated with higher levels
of crime.”) (quotations and citation omitted).
These findings clearly provide a rational, non-discriminatory basis in support of
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the mandatory minimum sentences provided in § 841. See, e.g., United States v. Wimbley,
553 F.3d 455, 463 (6th Cir. 2009) (rejecting equal protection challenge to § 841); United
States v. Watts, 553 F.3d 603, 604-05 (8th Cir. 2009) (same); United States v. Lee, 523
F.3d 104, 106 (2d Cir. 2008) (same); United States v. Taylor, 522 F.3d 731, 736 (7th Cir.
2008) (same); United States v. Garcia-Carrasquillo, 483 F.3d 124, 134 (1st Cir. 2007)
(same). Thus, notwithstanding what may be a disparate impact on minority groups
resulting from § 841’s mandatory minimum sentences, Congress’ retention of those
mandatory minimums does not offend the Equal Protection component of the Fifth
Amendment. See Frazier, 981 F.2d at 95 (“Even conscious awareness on the part of the
legislature that the law will have a racially disparate impact does not invalidate an
otherwise valid law, so long as that awareness played no causal role in the passage of the
statute.”); see also Washington v. Davis, 426 U.S. 229, 242 (1976) (“[W]e have not held
that a law, neutral on its face and serving ends otherwise within the power of government
to pursue, is invalid under the Equal Protection Clause simply because it may affect a
greater proportion of one race than of another.”).
III.
For the above-stated reasons, we will affirm the judgment and sentence.
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