United States v. Artie D. Crawford ( 1996 )

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No. 95-3056
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Artie Deshann Crawford, *
*
Appellant. *
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Submitted: March 12, 1996
Filed: May 14, 1996
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Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Artie Deshann Crawford appeals his sentence based on a plea of guilty
to distributing 55.6 grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994). Crawford attacks the sentencing scheme which punishes
distribution of cocaine base far more severely than distribution of
cocaine. He argues that the distinction in section 841(b) and U.S.S.G.
§ 2D1.1 between cocaine base and cocaine is nonsensical because the two
terms refer to the same chemical. Therefore, he contends that we should
be governed by the rule of lenity and sentence him to the lesser punishment
for cocaine. He also argues that the district court improperly assessed
his criminal history category points. We affirm.
Crawford stipulated to an offense level of thirty-two in his plea
agreement. The government argues that he has therefore waived
his objection to the cocaine base sentencing provisions. Though the
government's procedural argument may be correct, see United States v. Long,
77 F.3d 1060, 1061 (8th Cir. 1996), in light of the great importance of
this issue, we consider the merits, however briefly.
Crawford's argument is based on the same extensive record before the
district court in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga.
1994), appeal pending, (No. 95-8057 11th Cir.). The district court in
Davis relied on scientific testimony to conclude that cocaine and cocaine
base were synonymous, and that the statute distinguishing between the two
terms and according harsher punishment for crimes involving cocaine base
was nonsensical. 864 F. Supp. at 1305 ("In sum, cocaine base describes no
other substance than cocaine."). The scientific testimony from Davis was
made a part of the record in this case, as it has been in earlier cases
before this court. See United States v. Jackson, 64 F.3d 1213 (8th Cir.
1995), cert. denied, 116 S. Ct. 966 (1996); United States v. Brown, 72 F.3d
96 (8th Cir. 1995), petition for cert. filed, (Mar. 27, 1996) (No. 95-
8470). In Jackson, 64 F.3d at 1216, we considered the Davis record, but
we arrived at the opposite conclusion from the Davis decision, 64 F.3d at
1219-20. We considered the Davis testimony "at best equivocal." Id. at
1216. We based our decision on additional testimony that established
"practical, real-world differences" between cocaine base and other forms
of cocaine. Id. at 1219-20. Based on this testimony, we concluded that
the statutory distinction between cocaine and cocaine base was not
ambiguous and did not require us to apply the rule of lenity. Id. Accord
United States v. White, No. 95-2949, slip op. at 7 (8th Cir. Apr. 4, 1996);
Long, 77 F.3d at 1061; Brown, 72 F.3d at 97. See also United States v.
Smith, No. 95-3885, slip op. at 5 (8th Cir. Apr. 26, 1996).
In addition to these decisions from our circuit, we are persuaded by
another recent case, United States v. Booker, 70 F.3d 488 (7th Cir. 1995),
cert. denied, 116 S. Ct. 1334 (1996). Booker
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submitted the Davis record to the district court, but was nevertheless
sentenced under the cocaine base guidelines. Id. at 490. The Seventh
Circuit considered the argument that scientifically cocaine and cocaine
base are synonymous and refer to the same substance with the same chemical
formula. Judge Rovner's opinion for the Seventh Circuit concluded that the
scientific evidence was not dispositive, but that the court should attempt
to determine what Congress meant by the terms cocaine and cocaine base.
Judge Rovner looked beyond the language of section 841(b) and the
guidelines to the legislative history of section 841(b), which showed that
Congress intended the two terms to have different meanings. Id. at 492-94.
Judge Rovner held that Congress intended the term cocaine base to refer to
"crack," the smokable form of cocaine made by dissolving cocaine
hydrochloride in water and baking soda and reducing it to a solid
substance. Id. at 491, 493. Because Congress's intent was clear, there
was no reason to apply the rule of lenity. Id. at 494. Accord United
States v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, 116 S. Ct. 329
(1995); United States v. Camilo, 71 F.3d 984, 990 (1st Cir. 1995), cert.
denied, 1996 WL 138122 (1996); see also United States v. Smith, 73 F.3d
1414, 1418 (6th Cir. 1996).
With respect to his criminal history category points, Crawford argues
that a juvenile sentence he received for assault which resulted in a
sentence of probation and fifteen hours of community service was a
diversionary disposition and should not be counted under § 4A1.2(f) of the
Sentencing Guidelines. The record reflects, however, that the district
court found that this conviction was not a diversionary disposition. The
district court adopted the findings of the presentence report that Crawford
had completed the probation and community service, and thus discharged the
sentence imposed. We reject Crawford's argument.
We affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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