900 F.2d 37 (4th Cir. 1990), 89-5135, United States v. Thomas

Docket Nº:89-5135, 89-5136 and 89-5549.
Citation:900 F.2d 37
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ray THOMAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wayne Graham MASON, Defendant-Appellant.
Case Date:April 05, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 37

900 F.2d 37 (4th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ray THOMAS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Wayne Graham MASON, Defendant-Appellant.

Nos. 89-5135, 89-5136 and 89-5549.

United States Court of Appeals, Fourth Circuit

April 5, 1990

Argued Dec. 6, 1989.

Page 38

David B. Smith (Gregory B. English, on brief), English & Smith, Alexandria, Va., for defendants-appellants.

Lawrence E. Spong, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., William G. Otis, Asst. U.S. Atty., Brian M. O'Leary, Sp. Asst. U.S. Atty., Danielle N. DeFranco, on brief), Alexandria, Va., for plaintiff-appellee.

Before ERVIN, Chief Judge, and HALL and WILKINS, Circuit Judges.

ERVIN, Circuit Judge:

Ray Thomas was convicted of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a), of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, and of possession with intent to distribute in excess of 50 grams of cocaine base ("crack") in violation of 21 U.S.C. Sec. 841(a)(1). Judge James C. Cacheris sentenced Thomas to 110 months in prison for each cocaine offense, and to 120 months for possession with intent to distribute crack. All sentences were to be served concurrently.

At an arraignment before Chief Judge Albert V. Bryan, Jr. of the Eastern District of Virginia at Alexandria, Wayne Graham Mason pleaded guilty to possession with intent to distribute over 50 grams of cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(iii). Judge Bryan sentenced Mason to 120 months imprisonment.

Both Thomas and Mason appeal their respective sentences for the crack violations. Thomas also appeals his conspiracy conviction. These cases were consolidated for purposes of this appeal. Finding no merit to the defendants' arguments, we affirm.

I.

Both of the defendants in this case were stopped by members of the Drug Enforcement Agency ("DEA") task force at Washington National Airport. Detective Floyd Johnston and his partner Detective Grimes stopped Ray Thomas and Rodney Battle, a man with whom Thomas was travelling, on November 7, 1988. Detective Johnston requested and received permission to search Thomas and found cocaine taped to his leg. Detective Grimes searched Battle and found 600 small plastic vials in the inside pockets of his jacket. These vials are of the type commonly used to distribute narcotics.

Mason was stopped at the Washington National Airport on December 8, 1988. DEA agents found him in possession of over 50 grams of crack. At an arraignment, Mason pled guilty to charges of possession with intent to distribute crack. Chief Judge Albert V. Bryan sentenced Mason to the minimum term of imprisonment for the offense which is ten years.

II.

On appeal, both Thomas and Mason argue that the mandatory minimum sentence imposed by Congress for their cocaine base offenses is unconstitutional because it violates the Eighth Amendment and because it is irrational.

Specifically, the defendants argue that the penalty structure in 21 U.S.C. Sec. 841(b)(1)(A)(iii) for offenses involving crack violates the Eighth Amendment because it is disproportionately harsh in comparison to the penalty for offenses involving cocaine hydrochloride (cocaine powder). They rely on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), a case in which the Supreme Court held that South Dakota...

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