907 F.2d 623 (6th Cir. 1990), 89-6223, United States v. Avant

Docket Nº:89-6223.
Citation:907 F.2d 623
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald AVANT, Defendant-Appellant.
Case Date:July 11, 1990
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 623

907 F.2d 623 (6th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


Ronald AVANT, Defendant-Appellant.

No. 89-6223.

United States Court of Appeals, Sixth Circuit

July 11, 1990

        Submitted May 10, 1990.

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        W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, John Fowlkes, Asst. U.S. Attys., Office of the U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

        April R. Ferguson, Asst. F.P. Defender, Memphis, Tenn., for defendant-appellant.

        Before MARTIN and GUY, Circuit Judges; and GILMORE, District Judge. [*]

        BOYCE F. MARTIN, JR., Circuit Judge.

        Ronald Avant appeals his sentence of ten years imprisonment and four years of supervised release following his conviction for possession of cocaine base, commonly known as crack cocaine, with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Avant argues that the distinction between "cocaine base" and "cocaine" in the statute is unconstitutionally vague and violates the constitutional prohibition of disproportionate sentencing. We reject these arguments and affirm the district court.

        On the afternoon of January 24, 1989, two Memphis police officers were on a routine patrol when they saw Avant in front of a residence at 379 South Lauderdale in Memphis. Avant was leaning in the window of a 1978 Ford Mustang. There was another person in the car. Based on experience, the officers believed that Avant was involved in a drug transaction. They noted the license number of the car, and one officer walked up to Avant, who was holding a plastic bag. As the officer approached, Avant dropped the plastic bag and began to walk away. The officer stopped Avant and retrieved the plastic bag. The bag contained a substance that later proved to be 7.3 grams of crack cocaine, and the officers arrested Avant. The person inside the car, Ricky Coates, also dropped a plastic bag and tried to leave. The officers arrested Coates as well and recovered the second plastic bag, which turned out to contain 21 grams of simple cocaine.

        Avant was indicted and entered a guilty plea on July 17, 1989. After a hearing on August 31, 1989, the district court found that the sentencing range was ten to fifteen years in prison. Avant received ten years with four years of supervised release.

        Here the only issue is Avant's challenge to the constitutionality of the statute under which he was sentenced, the Anti-Drug Abuse Act of 1986, P.L. 99-570, 100 Stat. 3207. The Act mandates a substantially stiffer sentence for possession with intent to distribute cocaine base than for a similar amount of simple cocaine. Compare 21 U.S.C. Sec. 841(b)(1)(B)(ii) with 21 U.S.C. Sec. 841(b)(1)(B)(iii). Also, the Sentencing Guidelines provide that a single gram of cocaine base will be counted as 100 grams

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of simple cocaine for the purpose of determining a sentence. Sentencing Guidelines, Sec. 2D1.1(a)(3), Drug Equivalency Table (cross referenced from Guideline Sec. 2D2.1(b)). Avant argues first that the Act's increased sentencing for cocaine base violates constitutional standards of vagueness because the Act does not specifically define cocaine base. Avant next argues that the increased sentencing for cocaine base violates the prohibitions of disproportionate sentencing in the eighth amendment and the equal protection clause of the fourteenth amendment.

        We have already addressed these arguments in a one paragraph, unpublished order filed on December 7, 1989 in United States v. M.V. Peoples, 891 F.2d 293 (6th Cir.1989). However, these issues obviously will arise again, and thus we publish the following discussion.

        The standard for vagueness in a criminal statute is if it defines an offense in such a way that ordinary people cannot understand what is prohibited or if it encourages arbitrary or discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 355, 103 S.Ct. 1855, 1857, 75 L.Ed.2d 903 (1983) (statute requiring loiterers to provide "clear and credible" identification to police upon request held unconstitutionally vague because it failed to define "clear and credible"). See also Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Also here, Avant would bear the burden to establish that the Act was vague under Kolender as applied to his particular case, not merely that the Act could be construed as vague in some hypothetical case. The Court in Kolender invalidated the statute...

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