United States v. Sloan

                   United States Court of Appeals,

                          Eleventh Circuit.

      Nos. 94-2101, 94-9138, 94-9159, 94-9161 and 94-9263.

           UNITED STATES of America, Plaintiff-Appellee,

                                   v.

                   Roy SLOAN, Defendant-Appellant.

           UNITED STATES of America, Plaintiff-Appellee,

                                   v.

          Hein Van PHUNG, a.k.a. Hieu, Defendant-Appellant.

            UNITED STATES of America, Plaintiff-Appellee,

                                   v.

                   Bao VUONG, Defendant-Appellant.

            UNITED STATES of America, Plaintiff-Appellee,

                                   v.

                  Tai NGUYEN, Defendant-Appellant.

           UNITED STATES of America, Plaintiff-Appellee,

                                   v.

                   Hoang NGO, Defendant-Appellant.

                            Oct. 7, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 93-157-CR-T-99C), H. Dale Cook, Visiting
District Judge, (Nos. 1:93-CR-483-2, 1:93-CR-483-3, 1:93-CR-483-4),
Jack T. Camp, District Judge.

Appeals from the United States District Court for the Northern
District of Georgia.

Before KRAVITCH and COX, Circuit Judges, and CLARK, Senior Circuit
Judge.

     KRAVITCH, Circuit Judge:

     In   these   consolidated   appeals,   appellants   challenge   the

sentences imposed after their pleas of guilty to violations of 

21 U.S.C. § 841

(a).1          Appellants argue that the relevant statute and

Sentencing Guidelines ("guidelines") are ambiguous because they use

a 100:1 weight ratio for "cocaine base" and "cocaine" offenses and

thereby punish cocaine base offenses more severely despite the fact

that       cocaine   and     cocaine   base   are   chemically   synonymous.

Appellants contend the rule of lenity should apply and they should

receive the less severe penalties.             We disagree and affirm the

sentences imposed by the district court.

                                        I.

       Appellant Roy Sloan pleaded guilty, in the Middle District of

Florida, to two counts of possessing cocaine base with intent to

distribute in violation of 

21 U.S.C. § 841

(a).             At his change of

plea hearing, Sloan acknowledged he was pleading guilty to a charge

of distributing crack cocaine, and he confirmed the accuracy of the

government's factual recitation which indicated he had dealt in

crack cocaine.       His Pre-Sentence Report ("PSR") described specific

instances in which Sloan distributed crack cocaine and it proposed

an imprisonment range under the guidelines using the offense level

for cocaine base.          Sloan affirmatively accepted all the findings

and guideline applications in his PSR and received 70 months in

prison.

       Appellants Hein Van Phung, Ngo and Vuong each pleaded guilty,

in the Northern District of Georgia, to, inter alia, possession of

cocaine base with intent to distribute.             At their change of plea


       1
      Tai Nguyen, Huong Ngo and Bao Vuong also appeal the
district court's deportation order. Those claims are precluded
by the ruling in United States v. Oboh, 

92 F.3d 1082

 (11th
Cir.1996) (en banc).
hearings, Ngo and Vuong each acknowledged that they, acting in
                                                    2
concert with Phung, had sold crack cocaine.             Phung's, Ngo's and

Vuong's PSRs also documented that each had distributed crack

cocaine.3    At sentencing, a government expert testified that among

the substances seized in connection with the offenses of conviction

was crack cocaine, cocaine base in a rock-like form.            Phung, Ngo

and Vuong did not dispute that they had distributed this substance,

but instead argued that there was no scientific definition of crack

cocaine and that the sentencing scheme was too ambiguous to warrant

enforcement     of   the   heightened,   cocaine   base   penalties.   The

district court denied the objections and sentenced Phung, Ngo and

Vuong to prison terms of 65, 78 and 60 months, respectively.

                                    II.

         The statute under which appellants were sentenced provides in

relevant part that:

     (1)(A) In the case of a [drug offense] involving— ...

          (ii) 5 kilograms or more of a mixture or substance
     containing a detectable amount of— ...

          (II) cocaine, its salts, optical and geometric isomers,
     and salts of isomers; ...

          (iii) 50 grams or more of a mixture or substance
     described in clause (ii) which contains cocaine base; ...

     such person shall be sentenced to a term of imprisonment which
     may not be less than 10 years or more than life....

             (B) In the case of a [drug offense] involving— ...


     2
      Phung's plea colloquy was recorded stenographically, but
apparently not transcribed; thus, it is not part of the record.
     3
      The PSRs also indicated that, at a co-defendant's trial,
Phung testified he had discussed the process for converting
cocaine hydrochloride into crack cocaine with the co-defendant.
          (ii) 500 grams or more of a mixture        or   substance
     containing a detectable amount of— ...

          (II) cocaine, its salts, optical and geometric isomers,
     and salts of isomers; ...

          (iii) 5 grams or more of a mixture or substance described
     in clause (ii) which contains cocaine base; ...

     such person shall be sentenced to a term of imprisonment which
     may not be less than 5 years and not more than 40 years....

21 U.S.C. § 841

(b) (emphasis added).   The guidelines also provide

for a 100:1 weight ratio which effectively punishes "cocaine base"

offenses more severely than "cocaine" offenses.     See U.S.S.G. §
2D1.1(c).   Neither the statute, nor the guidelines in effect when

these crimes occurred, define "cocaine" or "cocaine base."4

     Appellants contend this scheme is ambiguous because "cocaine"


     4
      The guidelines were amended, effective November 1, 1993, to
define "cocaine base" as "crack cocaine." U.S.S.G. § 2D1.1(c),
Note D (defining crack cocaine as "a form of cocaine base,
usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form").
This new definition of "cocaine base" also applies to the
mandatory minimum, drug penalty statutes. See United States v.
Munoz-Realpe, 

21 F.3d 375, 377-78

 (11th Cir.1994). This
amendment came into effect after these crimes occurred, but
before appellants were sentenced. While the guidelines in effect
at the time of sentencing generally apply, the Ex Post Facto
Clause, U.S. Const., Art. I, Sect. 9, prohibits an amendment from
being applied in a manner which subjects a person to a greater
statutory or guidelines punishment than was authorized prior to
the amendment. See United States v. Howard, 

923 F.2d 1500

, 1504
n. 5 (11th Cir.1991). See also United States v. Camacho, 

40 F.3d 349, 353

 (11th Cir.1994) (ruling that the amendment's new
definition of cocaine base does not apply retroactively). In his
special concurrence, Judge Cox relies upon a recent Second
Circuit case to conclude that the guidelines' distinction between
cocaine and cocaine base was clear prior to the 1993 amendment,
and thus, that the amendment does not subject appellants to
greater punishment. Although the Second Circuit's view certainly
constitutes persuasive authority, we do not find it a sufficient
basis for resolving this difficult issue, and therefore conduct
our own analysis in Section III. Citations to § 2D1.1 refer to
the pre-1993 version of the guidelines unless specifically noted.
and   "cocaine   base"   are   chemically   synonymous.   As   a   result,

appellants argue, both the lesser and greater penalty provisions

facially apply to all cocaine-related offenses, and pursuant to the

rule of lenity,5 the district court erred when it failed to give

them the less severe punishment.6

      In support of these claims, appellants rely primarily upon the

transcript of the sentencing hearing held in          United States v.

Davis, 

864 F.Supp. 1303

 (N.D.Ga.1994).          In   Davis, government,

defense and court-appointed experts testified about the chemical

composition of cocaine-related substances.        In Phung's, Ngo's and

Vuong's cases, the district court, by consent of the parties,

adopted the Davis transcript and heard further expert testimony

from a Drug Enforcement Administration chemist.

                                   III.

          The record establishes the following facts:      the chemical

compound, C17H21NO4, occurs naturally in the coca leaf.            It is a


      5
      Under the rule of lenity, a court "will not interpret a
federal criminal statute so as to increase the penalty that it
places on an individual when such an interpretation can be based
on no more than a guess as to what Congress intended." Ladner v.
United States, 

358 U.S. 169, 178

, 

79 S.Ct. 209, 214

, 

3 L.Ed.2d 199

 (1958).
      6
      The government contends Sloan waived appeal of this issue
by failing to raise it in the district court. Sloan's challenge
arguably is subject to plain error review. See United States v.
Antonietti, 

86 F.3d 206

 (11th Cir.1996) (applying plain error
review to sentencing issues). Since we find no error, plain or
otherwise, we need not address the government's contention. The
government also argues that Phung's and Ngo's claims are moot
because: (1) they appealed only the stiffer statutory penalties,
not the heightened guidelines provisions; and (2) the bottom of
their guidelines exceed the statutory minimum sentences they
attack. The court rejects this narrow view of the appeals and
finds Phung and Ngo are challenging the entire sentencing scheme.
"base" because it reacts with acids to produce salts, and thus, is

referred to chemically as "cocaine" or "cocaine base."                      This

compound is usually processed for importation into the United

States by dissolving coca paste derived from the coca leaf in

hydrochloric acid, Hcl, and water, H 2O, to create a salt, cocaine

hydrochloride, C17H22C1NO4, popularly known as powder cocaine.              This

salt is water soluble and is ingested, injected or snorted, but not

smoked because it decomposes at the same temperature at which it

evaporates.    Cocaine hydrochloride can be converted back to a base

by several methods.          The most common process requires:              (1)

dissolving cocaine hydrochloride in baking soda and water; and (2)

boiling the mixture into solid form.              When dried, the resulting

substance, commonly called crack cocaine, is smoked and has the

same chemical formula as the naturally occurring base.

       The compound, C17H21NO4, in nature or upon conversion from

cocaine hydrochloride, is a base, and its distinct physical forms,

such    as    coca   paste     and      crack    cocaine,     are    chemically

indistinguishable.           Further,     substances,       such    as   cocaine

hydrochloride, are ultimately derived from the naturally occurring

compound.     As a result, the references to "cocaine" and "cocaine

base" in different parts of § 841(b) and § 2D1.1 create, as courts

have noted, some facial ambiguity.              See, e.g., United States v.

Booker, 

70 F.3d 488, 492

 (7th Cir.1995).

       This conclusion, however, does not mandate application of the

rule of lenity.      "The rule comes into operation at the end of the

process of construing what Congress has expressed, not at the

beginning as an overriding consideration of being lenient to
wrongdoers."     Callanan v. United States, 

364 U.S. 587, 596

, 

81 S.Ct. 321, 326

, 

5 L.Ed.2d 312

 (1961).              The court must consider not

just   the    language    of    the     sentencing        regime,   but   also   its

"structure,     legislative      history,      and    motivating      policies...."

Bifulco v. United States, 

447 U.S. 381, 387

, 

100 S.Ct. 2247, 2252

,

65 L.Ed.2d 205

 (1980).

       The structure of the statutory penalty scheme at issue here

counsels against application of the rule of lenity. Prior to 1986,

the drug distribution penalty statute included only one category

covering all cocaine-related substances.                  See 

21 U.S.C. § 841

(b)

(as amended 1984).       In 1986, amid growing concern over the abuse of

crack cocaine, Congress amended the law. Although crack cocaine is

only one form of cocaine base, this court has concluded that

Congress "chose[ ] to address the "crack problem' by enhancing the

penalties for the more broad class of cocaine bases."                        United

States v. Rodriguez, 

980 F.2d 1375, 1378

 (11th Cir.1992).                   To make

this change, Congress created separate tiers of punishments within

§ 841(b) for:      (1) "cocaine, its salts, optical and geometric

isomers, and salts of isomers" ("clause ii");                 and (2) substances

"described in clause (ii) which contain[ ] cocaine base" ("clause

iii").     Congress' inclusion of the phrase, "described in clause

ii," within clause iii indicates that Congress considered clause ii

a re-enactment of the preceding catch-all provision covering all

cocaine-related     substances        and   that     by    enacting    clause    iii,

Congress     intended    to    single    out   a     subset   of    cocaine-related
substances, all forms of cocaine base, for harsher treatment.7

     The legislative history and motivating policies underlying §

841(b) also support this construction of the statute.             Although

courts have construed aspects of § 841(b) differently, this court

and all other circuit courts who have considered it, have concluded

that, at a minimum, when Congress amended the statute in 1986 it

intended to increase penalties for crack cocaine offenses.              See,

e.g., Booker, 

70 F.3d at 492

 ("Congress was targeting crack cocaine

when it passed the stiffer sentencing provisions for "cocaine

base.' ");    United States v. Fisher, 

58 F.3d 96, 99

 (4th Cir.1995)

("This legislative history demonstrates that Congress intended,

with the enactment of clause (iii), to penalize more severely

violations involving crack cocaine."); Rodriguez, 

980 F.2d at 1378

(noting the legislative history "focused on the malevolent nature

of crack cocaine").

         Congress'   intent   to   impose   more   severe   sanctions   upon

offenses involving cocaine base, and crack cocaine in particular,

must also guide this court's construction of the guidelines'

distinction between "cocaine" and "cocaine base" offenses.               See

Munoz-Realpe, 

21 F.3d at 378

 (ruling that mandatory minimum, drug

penalty statutes and analogous guidelines must be treated as a

unified whole "since both provisions seek to address the same

     7
      Appellants assert that cocaine hydrochloride, like all
cocaine salts, "contains" cocaine base as its underlying building
block. They further argue that this fact means that clauses ii
and iii are fully coextensive, and therefore, that the statute is
hopelessly ambiguous. This argument fails because it is premised
upon an unreasonable construction of the word, "contains."
Cocaine salts have a different chemical makeup than cocaine base,
and thus, while they contain all of the elements which make up
cocaine base, they no longer contain cocaine base.
problem").    As a result, the higher penalty provisions prescribed

for cocaine base must be applied to persons, such as appellants,

who distribute the rock-like form of cocaine base, while the lesser

cocaine     penalties     must      be    interpreted       as     applying      to

cocaine-related substances, such as the salts, which are chemically

distinct from the base compound.          See United States v. Montoya, 

87 F.3d 621, 623

 (2d Cir.1996) (ruling that even prior to the 1993

amendment there was "no doubt that the Guidelines' term cocaine

base included at least crack" (emphasis in original)).                  Congress'

recent rejection of the proposed guideline amendment which would

have ended the 100:1 weight ratio further confirms its intent that

crack cocaine offenses should receive harsher treatment under the

guidelines, as well as the drug distribution statute.                  See United

States v. Canales, 

91 F.3d 363, 369

 (2d Cir.1996) (observing that

"Congress instructed the [Sentencing] Commission that "the sentence

imposed for trafficking in a quantity of crack cocaine should

generally exceed the sentence imposed for trafficking in a like

amount of powder cocaine' " (internal citations omitted)).                 "While

Congress's later view as to the meaning of pre-existing law does

not seal the outcome when addressing a question of statutory

interpretation,    it    should     not   be   discounted    when      relevant."

Sorrell v. Commissioner of Internal Revenue, 

882 F.2d 484, 489

(11th Cir.1989).        See also Johnsen v. Commissioner of Internal

Revenue, 

794 F.2d 1157, 1163

 (6th Cir.1986) ("Although the views of

a   later   Congress    are   not   controlling    as   to       the   meaning   of

pre-existing law, they carry some weight and may not be ignored
when they are clearly relevant.").8

      No doubt Congress could have enacted a statute which expressed

its intentions more precisely, but that fact does not compel the

conclusion that the statute Congress chose to enact is so ambiguous

that the rule of lenity applies.              Appellants are entitled to the

benefit of the rule only if their actions in distributing a

rock-like form of cocaine base were arguably subject to § 841(b)'s

and   §    2D1.1(c)'s    lower   tier    of    penalties.    The   structure,

legislative history and motivating policies behind the sentencing

scheme precludes such a conclusion.

                                        IV.

          Alternatively, appellants assert that the sentencing scheme

violates the equal protection prong of the Due Process Clause, U.S.

Const., amend. V.       First, they contend it treats crack cocaine and

other forms of cocaine base disparately without a rational basis.9

      8
      Appellants' claim that crack cocaine lacks a scientific
definition does not affect these conclusions. Crack cocaine can
be chemically identified as a form of cocaine base, and it is
sufficiently physically distinguishable to allow persons, such as
appellants, to confirm that they have distributed it. See id. at
368 ("The street name "crack' is not ambiguous, because crack has
a common and ordinary meaning that is understood by [appellant
concededly], by others in the drug trade, and by citizens in the
communities that are plagued by the drug.").
      9
      In his special concurrence, Judge Cox proposes that we not
reach this issue "because it was not presented to the district
court." He quotes a portion of the motion filed in district
court by the Northern District of Georgia appellants in which
they articulate only a race-based, equal protection challenge.
Elsewhere in that motion, however, these appellants also
explicitly requested that the district court adopt the reasoning
of the Davis court. In Davis, the district court concluded there
was no rational basis for treating crack cocaine and other forms
of cocaine base differently. See Davis, 

864 F.Supp. at 1309

 & n.
25. Thus, although appellants could have articulated this
precise claim more clearly before the district court, in my view
they preserved the issue for appeal. Because we must reach this
This assertion is without merit.         Although the 1993 amendment to

the guidelines redefined "cocaine base" as only "crack cocaine,"

that amendment went into effect after these crimes occurred. Thus,

under the law applicable to this case, crack cocaine is treated the

same as other forms of cocaine base.           See Rodriguez, 

980 F.2d at 1378

.       Appellants   next   argue   that       the   sentencing    regime's

distinction between cocaine base and cocaine hydrochloride lacks a

rational basis.      This court repeatedly has rejected this claim.

See, e.g., United States v. Terry, 

60 F.3d 1541, 1544

 (11th

Cir.1995) (ruling that Congress singled out cocaine base offenses

for   harsher    treatment   because    of   its    availability,     cost   and

effects).

      Accordingly, we AFFIRM the sentences imposed by the district

court.

      COX, Circuit Judge, specially concurring:

      I join parts I, II and III of the court's opinion, except for

footnote 4.       Footnote 4 suggests, but does not hold, that the

guideline amendment effective November 1, 1993, which defines

"cocaine base" as "crack," does not apply in this case.               In my view

the guideline amendment does apply.            All of the appellants were

sentenced after its effective date.          Application of this amendment

would not violate the Ex Post Facto Clause of the Constitution

because its application would not subject appellants to greater

guideline or statutory punishment than was authorized prior to the

amendment.      "[E]ven prior to the amendment the distinction made in

issue for some appellants and find no error of any sort, there is
no need to determine the form of review, if any, to which Sloan,
who admittedly failed to raise this claim, is entitled.
the   guidelines   between    cocaine   and    cocaine    base    was   clear.

Further, the express purpose of the 1993 amendment was to reject

the interpretation of cases ... which had ruled that cocaine base

included more than crack....        Thus, the amendment did not expand

the reach of the term cocaine base as used in § 2D1.1(c), but

rather confined it."      United States v. Montoya, 

87 F.3d 621, 623

(2d Cir.1996).

      I do not join the portion of part IV of the court's opinion

that addresses appellants' contention that crack cocaine and other

forms of cocaine base are treated disparately without a rational

basis, in violation of the equal protection prong of the Due

Process Clause. I would not address that contention because it was

not presented to the district court.

      Sloan admittedly failed to present this issue to the district

court.   The other appellants filed in the district court a written

motion asserting their constitutional challenges to the sentencing

scheme   in   question.      The   ground   for   their   equal   protection

challenge appears in their motion.          It reads as follows:

           The federal sentencing provisions regarding cocaine base
      impose a disproportionate burden upon blacks and other people
      of color.   Congress was motivated by racial considerations
      when it enacted the enhancement provision for cocaine base.
      Such a law is not constitutionally valid unless the
      classification is narrowly tailored to further a compelling
      government interest. The statute is not narrowly tailored;
      instead it is arbitrary, irrational, and was racially
      motivated.

(R. 1-171 at 8.)    We should not entertain on appeal an issue not

raised in the district court.       See Booth v. Hume Publishing, Inc.,

902 F.2d 925

 (11th Cir.1990) ("[A]s a general rule an appellate

court will not consider a legal issue or theory raised for the
first time on appeal....").