United States v. Lewis J. Smith , 73 F.3d 1414 ( 1996 )

RYAN, J., delivered the opinion of the court, in which MATIA, D.J., joined. JONES, J. (pp. 1418-23), delivered a separate opinion concurring in the result.

RYAN, Circuit Judge.

The defendant, Lewis Smith, appeals his conviction and sentence entered after a bench trial for unlawful possession of more than five grams of cocaine base in violation of 21 U.S.C. § 844. We are asked to determine: (1) whether the district court erred in denying his motion to suppress evidence, and (2) whether the 100:1 sentencing ratio for cocaine powder and cocaine base in U.S.S.G. § 2D1.1 is unconstitutional. We conclude that the defendant’s arguments are meritless and therefore affirm the judgment of the district court.

I.

On December 6,1993, police officers David Barnes and Scott White were on routine patrol near a high school in Martins Ferry, Ohio, when they observed Smith seated in a vehicle parked on the side of the road. While passing the vehicle, Officer Barnes observed Smith slumped down in the driver’s seat drinking a can of beer. The officers drove around the block in order to approach the vehicle from behind. When they returned to the place where the car had been parked, it was gone. After a brief search of the area, the officers spotted and stopped the vehicle. Officer Barnes exited his patrol car and approached Smith who had exited his vehicle. Officer Barnes asked Smith for his driver’s license and Smith responded that he did not have it with him. When Officer Barnes asked Smith for his name and social security number, Smith allegedly turned and attempted to flee. Officer Barnes stopped Smith after Smith had taken only a few steps.

Before placing Smith under arrest, Officer Barnes looked into Smith’s car and saw an open beer can sitting on the floor of the driver’s side, marijuana scattered throughout the car, and additional unopened containers. Officer Barnes arrested Smith for possessing an open beer can in a motor vehicle, and for consumption of alcohol in a motor vehicle. At the police station, a search of Smith revealed a black film container containing over five grams of cocaine and $138.

Before trial, Smith moved to suppress the cocaine seized from his person at the police station and a loaded 9 mm Beretta pistol seized from the automobile pursuant to a warrant. The district court conducted a hearing- and denied both motions. After a bench trial, Smith was convicted of possession of cocaine under 18 U.S.C. § 844 and of possession of a firearm during a drug trafficking offense under 18 U.S.C. § 924(c), which count was later vacated. On September 23, 1994, Smith was sentenced on the drug possession offense to 60 months imprisonment to be followed by a three-year period of supervised release.

II.

Smith argues that the district court erred in refusing to grant his motion to suppress the cocaine seized incident to his arrest. Smith maintains that he was stopped for a completed misdemeanor which is an improper basis for an investigatory stop.

When reviewing the denial of a motion to suppress evidence, the appellate court must consider the evidence in the light most favorable to the government. United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.), cert. denied, 506 U.S. 892, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992). This court applies the clearly erroneous standard to findings of fact when reviewing the ruling of a district court on a motion to suppress but reviews conclusions of law de novo. Id.

A police officer is permitted to make an arrest without a warrant for a misdemeanor committed in his presence. United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 825, 46 L.Ed.2d 598 (1976). However, this requirement that a misdemeanor must have occurred in the officer’s presence to justify a warrantless arrest is not mandated by the Fourth Amendment; it is merely a rule of the common law. Welsh v. Wisconsin, 466 U.S. 740, 756, 104 S.Ct. 2091, 2101, 80 L.Ed.2d 732 (1984) (White, J., dissenting); Devine v. Pickering, Nos. 91-5950/5961,1992 WL 70188 at * 4 n. 2, 1992 U.S.App. LEXIS 7160 at *7 n. 2 (6th Cir. April 8, 1992) (unpublished disposition). The State of Ohio also generally requires that a misdemeanor be committed in the officer’s presence for the officer to make a warrantless arrest for a misdemeanor offense. State v. Henderson, 51 Ohio St.3d 54, 554 N.E.2d 104, 106 (1990).

The defendant’s argument that the officers could not stop him because a misdemeanor had been completed is meritless. The misdemeanor offenses of possessing an open container of an alcoholic beverage in a motor vehicle and consumption of alcohol in a motor vehicle were committed in the officers’ presence. As the officers passed Smith’s vehicle, they witnessed him slumped down in Ms seat drinking from a can. The officers left only momentarily in order to effectuate a proper stop of the defendant since they had already passed Smith’s vehicle and could no longer pull in behind it. The misdemeanor presence rule was not intended to apply to a ease such as tMs where, due to the good fortune of the defendant, he was able to conclude Ms offenses and elude the police. Thus, the district court properly demed the motion to suppress.

III.

Smith also challenges the constitutionality of the 100:1 ratio for crack cocaine and powder cocaine in section 2D1.1 of the Sentencing Guidelines. The defendant urges tMs court to reverse the law of tMs circuit and follow a recent decision by the Umted States District Court for the Northern District of Georgia, United States v. Davis, 864 F.Supp. 1303 (N.D.Ga.1994), which held that crack cocaine enhancements are unconstitutionally vague. The defendant urges tMs court to do so in light of new scientific evidence which suggests that there is no meaningful distinction between crack cocaine and powder cocaine.

The defendant therefore raises a constitutional challenge to his sentence, over which, as a question of law, this court exercises de novo review. United States v. Knipp, 963 F.2d 839, 843 (6th Cir.1992).

Section 841 contains the same ratio as that contained in section 2D1.1 of the Sentencing Guidelines. 21 U.S.C. § 841. This circuit has heard and rejected vagueness challenges to the 100:1 ratio in § 841 on several occasions based on the same reasoning used by Smith. In United States v. Levy, 904 F.2d 1026 (6th Cir.1990), cert. denied, 498 U.S. 1091, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991), the defendant challenged the 100:1 ratio in 21 U.S.C. § 841 and alleged that the term “cocaine base” was unconstitutionally vague. TMs court rejected the challenge. Id. at 1033. In so holding, this court explained: “It is undisputed that Congress amended [21 U.S.C. § 841(b)(1)(B)] out of concern that coeaine base is ‘more dangerous to society than cocaine [powder] because of crack’s potency, its Mghly addictive nature, its affordability, and its increasing prevalence.’ ” Id. at 1032 (brackets added and in original) (quoting United States v. Buckner, 894 F.2d 975, 978 (8th Cir.1990)).

The court further found:

In broad terms, cocaine base and cocaine hydrochloride may be distinguished by their texture and chemical composition. Cocaine hydrochloride is water soluble, formed in crystals or flakes, and is generally snorted by users. Cocaine base is not water soluble, is concentrated in rock-hard forms of various sizes, and is generally smoked. Thus, the phrase coeaine base defines a substance that is distinguishable from other forms of cocaine based upon appearance, texture, price, means of consumption, the character and immediacy of the effects of use, and chemical composition.

Id. at 1033 (citations omitted).

Also, in United States v. Pickett, 941 F.2d 411 (6th Cir.1991), this circuit held that the 100:1 ratio in 21 U.S.C. § 841 does not violate substantive due process because Congress did not act arbitrarily or irrationally when it established the ratio. Id at 418. Relevant to Smith’s arguments on appeal, the Pickett court found that

there is sufficient difference of opmion in the scientific community regarding the different likelihoods of becoming addicted to crack or cocaine to justify the Congressional distinction between the two.... [E]xperts believe that the speed with which crack gets to the brain produces a significantly different effect that' increases the likelihood of addiction. There was also evidence produced [at the sentencing hearing] that crack is usually a purer drug than is cocaine.

Id.

Most notably, this court in United States v. Salas, No. 93-5897, 1994 WL 24982, 1994 U.S.App. LEXIS 1515 (6th Cir. Jan. 27, 1994) (unpublished disposition), held:

The Sentencing Guidelines do not establish the illegality of any conduct. Rather, they are directives to judges and not to citizens. As such, they are not susceptible to a vagueness attack. Since there is no constitutional right to sentencing guidelines, the limitations placed on judges’ discretion by the Guidelines do not violate a defendant’s right to due process by reason of vagueness.

Id. at *2,1994 U.S.App. LEXIS at *4-5.

Custom and tradition in the various circuits of the United States Court of Appeals dictate that one panel of a circuit court will not overrule the decision of another panel; only the court sitting en banc may overrule a prior decision of a panel. See, e.g., Shattuck v. Hoegl, 523 F.2d 509 (2d Cir.1975).

The Sixth Circuit has long adhered to this venerable principle. According to Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir.1985): “A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Id. The latest version of the Sixth Circuit Policies instruct:

“Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration is required to overrule a published opinion of this court.” Court Policies, § 10.2 (Spring 1991).

We reject the defendant’s challenge to section 2D1.1 of the Sentencing Guidelines. Smith asks this court to review its holding in Levy because the “decision was made without the benefit of scientific data” and is therefore “subject to revision.” Pursuant to established case law and this circuit’s policies, this court would have to revisit the rationale behind Levy and Pickett in order to find merit in the defendant’s argument on this issue. This, we are forbidden to do. Moreover, according to our decision in Salas, the Sentencing Guidelines are not subject to a vagueness challenge.

Accordingly, the judgment of the district court is AFFIRMED.