United States v. Davis-Cobbins, Keyaw , 177 F. App'x 488 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 1, 2006
Decided April 17, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1872
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Western
Plaintiff-Appellee, District of Wisconsin
v. No. 04 CR 147
KEYAWN D. DAVIS-COBBINS, John C. Shabaz,
Defendant-Appellant. Judge.
ORDER
Keyawn Davis-Cobbins pleaded guilty to distributing “cocaine base” in
violation of 21 U.S.C. § 841(a)(1). The district court indicated at sentencing that
cocaine base and crack were interchangeable terms and thus calculated the
guideline imprisonment range using the stiffer penalties applicable to crack. See
U.S.S.G. § 2D1.1(c)(5). Davis-Cobbins was sentenced after the Supreme Court
decided United States v. Booker, 543 U.S. 220 (2005), to 90 months’ imprisonment to
be followed by 5 years’ supervised release. Davis-Cobbins argues on appeal that the
district court abused its discretion in sentencing him according to the crack cocaine
guidelines absent any evidence or testimony that the substance was the crack
cocaine form of cocaine base. The government concedes that the district court erred
when it stated that there was no distinction between cocaine base and crack, but
argues that the court did not clearly err in sentencing Davis-Cobbins pursuant to
the higher guideline range. Because the district court did not make the required
No. 05-1872 Page 2
finding that the substance was crack, we vacate Davis-Cobbins’s sentence and
remand for resentencing.
On June 30, 2004, Davis-Cobbins sold 43.2 grams of cocaine base to a
confidential source working with DEA agents. The probation officer described the
drug in the Presentence Investigation Report (PSR) as cocaine base, and calculated
Davis-Cobbins’ sentence according to the higher guidelines range for the crack
cocaine form of cocaine base. Davis-Cobbins did not object to the PSR, but at his
sentencing hearing he requested that the government retest the drugs to determine
whether they were cocaine base or crack in light of United States v. Edwards,
397 F.3d 570, 577 (7th Cir. 2005).
The district court denied the request and said, “Whether this is cocaine base
or crack cocaine, I’ll give him any politically correct nomenclature that you wish,
but that’s what’s presently before the Court and the Court is now at sentencing and
it believes that we should proceed with that sentencing.” When questioned by the
court, counsel for the government said, “Your Honor, we believe that it’s -- crack
cocaine I believe is cocaine base as well so --.” The court then said,
Well, I’m going to use the terms until I get reversed or there’s something
to the contrary, it’s cocaine base slash crack, and the Court does believe
that that’s the appropriate definition. This, however, is going to be shown
as 43.2 grams of cocaine base . . . . We will call it cocaine base because
that’s what the Indictment calls it, that’s what he --that’s what he pled
guilty to and that’s what the testing occurred [sic].
The court then sentenced Davis-Cobbins near the bottom of the proposed guidelines
range to a term of 90 months’ imprisonment.
Davis-Cobbins argues that he should have been sentenced consistent with the
cocaine powder guidelines rather than those for crack cocaine because the
government failed to prove that he distributed crack. In 1993 Congress added a
definition of cocaine base to the sentencing guidelines: “ ‘Cocaine base,’ for the
purposes of this guideline, means ‘crack.’ ‘Crack’ is 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(c),
Note (D). We interpreted the definition to mean that only the form of “cocaine base”
which is “crack” is eligible for the enhanced sentence under § 2D1.1. United States
v. Adams, 125 F.3d 586, 592 (7th Cir. 1997). We recently reaffirmed this holding in
Edwards, 397 F.3d at 577.
Federal Rule of Criminal Procedure 32(i)(3)(B) requires the district court to
make a factual finding on “any disputed portion of the presentence report or other
No. 05-1872 Page 3
controverted matter” that will affect sentencing. See United States v. Buchanan,
362 F.3d 411, 412 (7th Cir. 2004); United States v. Chatmon, 324 F.3d 889, 893 (7th
Cir. 2003). This rule serves two purposes—it protects the defendant’s due process
right to be sentenced on the basis of accurate information and provides a clear
record of the resolution of disputed facts for reviewing courts or agencies. See
United States v. Musa, 946 F.2d 1297, 1307 (7th Cir. 1991); United States v.
Eschweiler, 782 F.2d 1385, 1387-88 (7th Cir. 1986).
In the present case, Davis-Cobbins argued at sentencing that there was not
sufficient evidence to show that he sold the crack form of cocaine base. Because he
contested an issue related to sentencing, the district court was required to make a
factual finding as to the kind of controlled substance he sold. See Edwards v.
United States, 523 U.S. 511, 513-14 (1998) (Sentencing Guidelines instruct judge “to
determine both the amount and the kind of ‘controlled substances’ for which a
defendant should be held accountable—and then to impose a sentence that varies
depending upon amount and kind.”); United States v. Griffin, 194 F.3d 808, 829 (7th
Cir. 1999) (“The sentencing court is required to determine whether the controlled
substance at issue consisted of cocaine, crack, or both.”). The district court did not
do so, instead stating simply that cocaine base and crack were interchangeable
terms. As a result, we are unable to evaluate whether Davis-Cobbins was properly
sentenced pursuant to the higher guidelines range for crack cocaine.
Because the district court failed to make the required factual finding that
Davis-Cobbins distributed the crack form of cocaine base, we VACATE
Davis-Cobbins’s sentence and REMAND for resentencing.