No. 96-8851 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 DALE BALDWIN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOEL M. GERSHOWITZ Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED 1. Whether use of the term "cocaine base" in 21 U.S.C. 841(b) (1) (A) (iii) renders the statute ambiguous so that the rule of lenity governs and requires the application of the penalty for offenses involving cocaine rather than the penalty for offenses involving cocaine base. 2. Whether the federal penalties for distribution of cocaine base violate the constitutional guarantee of equal protection. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8851 DALE BALDWIN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 1-11) is unreported. JURISDICTION The judgment of the court of appeals was entered on January 17, 1997. The petition for a writ of certiorari was filed on May 1, 1997, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT After entering a guilty plea in the United States District Court for the Middle District of Florida, petitioner was convicted ---------------------------------------- Page Break ---------------------------------------- 2 on one count of conspiring to possess cocaine base with the intent to distribute it, in violation of 21 U.S.C. 846, and on three counts of possessing cocaine base with the intent to distribute it, in violation of 21 U.S.C. 841(a) (1). He was sentenced to life imprisonment. The court of appeals affirmed. Pet. App. 1-11. 1. Petitioner was a member of a drug trafficking enterprise known as the Harvey organization. The enterprise operated in Largo, Florida, during 1994 and specialized in the distribution of cocaine base ("crack" cocaine). Petitioner sold cocaine base and brokered cocaine base transactions for the organization. Gov`t C.A. Br. 3-4. 2. On appeal, petitioner challenged the sentencing regime that punishes cocaine base offenses more severely than offenses involving powder cocaine. Compare, e.g. 21 U.S.C. 841(b) (1) (B) (ii) (II) (mandating imposition of five-year minimum sentence for distribution of 500 grams or more of "cocaine" or "its salts") with Section 841(b) (1) (A) (iii) (mandating imposition of ten-year minimum sentence for distribution of 50 grams or more of "cocaine base"). He contended, first, that there is no scientific distinction between cocaine and cocaine base and therefore that, under the rule of lenity, the district court should have sentenced him pursuant to the more lenient penalty provisions applying to cocaine. Second, he argued that the disparity violates the Due Process Clause because no rational basis supports the distinction between cocaine base and other forms of cocaine. Finally, he contended that the definition of cocaine base in the Sentencing ---------------------------------------- Page Break ---------------------------------------- 3 Guidelines is impermissible vague. The court of appeals rejected each of those arguments, holding that they were foreclosed by the court's earlier decision in United States v. Sloan 97 F.3d 1378 (11th Cir. 1996), cert. denied, No. 96-8145 (June 16, 1997). ARGUMENT Petitioner contends that the provisions of 21 U.S.C. 841(b) prescribing different penalties for offenses involving "cocaine" and "cocaine base" are ambiguous. He argues that, under the rule of lenity, he should have been sentenced under the lesser statutory and Sentencing Guidelines penalties for offenses involving cocaine rather than those for cocaine base. He also argues that equal protection principles are violated by application of the cocaine base penalty provisions in this case. 1. The rule of lenity governs a case only if, after a reviewing court has "seiz[ed] everything from which aid can be derived," the statute remains so ambiguous that the court can make "no more than a guess as to what Congress intended." Reno v. Koray, 515 U.S. 50, 65 (1995) (quoting Smith v. United States, 508 U.S. 223, 239-240 (1993), and Ladner v. United States, 358 U.S. 169, 178 (1958)). The proper construction of Section 841(b) does not require such guesswork. Section 841(b) sets forth the penalties for violations of Section 841(a). Subsection (1) (A) of Section 841(b) establishes a sentence of ten years to life in cases involving certain amounts of controlled substances, and it lists eight categories of such substances, with the amount that triggers the mandatory sentence ---------------------------------------- Page Break ---------------------------------------- 4 depending on the nature of the substance. Of relevance to petitioner's claim are the two categories defined in clauses (ii) and (iii) of Subsection 841(b) (1) (A). Clause (ii) provides a sentence of ten years to life in cases involving "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 * * *." Clause (iii) provides a sentence of ten years to life for cases involving "50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base." Petitioner's argument (Pet. 5) is that "cocaine" as used in clause (ii) is the same substance as "cocaine base" as used in clause (iii). Accordingly, he contends that the statute is ambiguous about whether the "cocaine" or "cocaine base" penalty provision governs his offense, which incontestably involved cocaine base. We agree that cocaine base is a form of cocaine, but there is no ambiguity about which penalty provision applies here. Congress established the enhanced penalties for offenses involving cocaine base in 1986. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986). Congress's inclusion in clause (iii) of a reference to clause (ii) "indicates the 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." United States v. Sloan 97 F.3d at 1382. See also United States v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, ---------------------------------------- Page Break ---------------------------------------- 5 116 S. Ct. 329 (1995); United States v. Brown, 859 F.2d 974, 976 (D.C. Cir. 1988). By creating the enhanced penalties for cocaine base, Congress provided that when an offense involves cocaine base, "the defendant must be sentenced under * * * the more specific provision dealing with cocaine base." Brown, 859 F.2d at 976. That reading of Section 841(b) (1) (A) is supported by the canon of construction that a statute should be interpreted so as not to render any part of it inoperative. United States v. Menasche, 348 U.S. 528, 538-539 (1955). Under petitioner's construction of the statute, clause (iii) would be rendered inoperative in its entirety, since all offenses involving cocaine base would be sentenced under clause (ii). His construction would similarly render inoperative the parallel clause in Section 841 (b) (1) (B). By contrast, the court of appeals' interpretation does not render clause (ii) inoperative; clause (ii) applies to cases involving all forms of cocaine other than cocaine base, including its salts such as cocaine hydrochloride. In sum, petitioner's cocaine base offenses were correctly sentenced according to the provision governing offenses involving "cocaine base." See, e.g., United States v. Jackson, 84 F.3d 1154, 1160-1161 (9th Cir.) (because statute draws sufficient legal distinction between "cocaine" and "cocaine base," no need to resort to rule of lenity), cert denied, 117 S. Ct. 445 (1996); United States v. Booker, 70 F.3d 488, 489-494 (7th Cir. 1995) (sentencing provisions not ambiguous in light of legislative history), cert. denied, 116 S. Ct. 1334 (1996); United States v. Jackson, 64 F.3d ------------------------------------------- Page Break ---------------------------------------- 6 1213, 1219-1220 (8th Cir. 1995) (rejecting rule of lenity claim in light of legislative history), cert. denied, 116 S. Ct. 966 (1996); Fisher, 58 F.3d at 98-99 (rejecting rule of lenity claim on basis of rules of statutory construction, common-sense reading of Section 841(b) (l)(A), and legislative history) . 2. Nor is there any merit to petitioner's claim (Pet. 7) that the disparities between the sentences Congress has prescribed for crimes involving cocaine base and crimes involving powder cocaine violate the Equal Protection Clause. All the courts of appeals that have addressed claims that the cocaine base sentencing laws are racially discriminatory or irrational in violation of equal protection or due process have rejected them. See, e.g., United States v. Moore, 54 F.3d 92, 96-99 (2d Cir. 1995), cert. denied, 116 S. Ct. 793 (1996); United States v. Coleman, 24 F.3d 37, 38-39 (7th Cir. ), cert. denied, 513 U.S. 901 (1994) ; United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir.), cert. denied, 512 U.S. 1242 (1994); United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir. 1993), cert. denied, 511 U.S. 1043, 1146, 513 U.S. 883 (1994); United States v. Lattimore, 974 F.2d 971, 975-976 (8th Cir. 1992), cert. denied, 507 U.S. 1020 (1993); United States v. Harding, 971 F.2d 410 (9th Cir. 1992), cert. denied, 506 U.S. 1070 (1993); United States v. Frazier, 981. F.2d 92, 95 (3d Cir. 1992), cert. denied, 507 U.S. 1010, 1011 (1993); United States v. King, 972 F.2d 1259 (11th Cir. 1992); United States v. Cyrus, 890 F.2d 1245, 1249 (D.C. Cir. 1989). The challenged disparity is racially neutral and justified by ---------------------------------------- Page Break ---------------------------------------- 7 constitutionally sufficient reasons. Cocaine base is an especially potent and addictive drug that can be sold in smaller doses than powder cocaine and is therefore more inexpensive and more widely available. As Congress found in rejecting the Sentencing Commission's proposed amendment to the Sentencing Guidelines that would have abolished the disparity between sentences for cocaine base and powder cocaine: [C]rack is more addictive than powder cocaine; it accounts for more emergency room visits; it is most popular among juveniles; it has greater likelihood of being associated with violence; and crack dealers have more extensive criminal records than other drug dealers and tend to use young people to distribute the drug at a greater rate. See H.R. Rep. No. 272, 104th Cong., 1st Sess. 3 (1995). See also Cyrus, 890 F.2d at 1248 ("Crack is far more addictive than [powder] cocaine. It is far more accessible due to its relatively low cost. And it has experienced an explosion of popularity"). In short, Congress had a rational basis for singling out cocaine base offenses for harsher treatment. Petitioner's statutory and equal protection claims derive their sole support from United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994) , but Davis no longer has any legal force in light of the Eleventh Circuits decision in Sloan, which explicitly rejected Davis's holdings. 97 F.3d at 1381, 1383 n.9. Moreover, every court of appeals that has considered Davis has declined to follow it. See, e.g., United States v. Canales, 91 F.3d 363, 366- 369 (2d Cir. 1996); United States v. Flanagan, 87 F.3d 121, 123-124 & n.1 (5th Cir. 1996); Jackson, 84 F.3d at 1160-1161; United States ---------------------------------------- Page Break ---------------------------------------- 8 v. Hill, 79 F.3d 1477, 1488-1489 & n.6 (6th Cir.), cert. denied, 117 S. Ct. 158 (1996) United States v. Camilo, 71 F.3d 984, 990 (1st Cir. 1995), cert. denied, 116 S. Ct. 1555 (1996); Booker, 70 F.3d at 489-491; Jackson, 64 F.3d at 1219-1220; Fisher, 58 F.3d at 99. 1 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General JOEL M. GERSHOWITZ Attorney JULY 1997 ___________________(footnotes) 1 Petitioner also contends (Pet. 7) that the harsher penalties for cocaine base offenses violate the Eighth Amendment's bar against cruel and unusual punishment. Petitioner failed to raise this claim in the court of appeals and the court of appeals did not address it. Accordingly, the claim is not properly before this Court. In any event, the courts of appeals that have addressed the claim have correctly rejected it. See, e.g., United States v. Hill, 30 F.3d 48, 50 (6th Cir.), cert. denied, 513 U.S. 943, 1025 (1994); United States v. Fisher, 22 F.3d 574, 579 (5th Cir.), cert. denied, 513 U.S. 1008 (1994); Frazier, 981 F.2d at 96.