U.S. v. Shaw, s. 90-50242

• Decision Date: 11 June 1991
• Docket Number: Nos. 90-50242,CR-89-0243-TJH-2,s. 90-50242
• Citation: 936 F.2d 412
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jesse Lee SHAW, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Anthony WILSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 412

936 F.2d 412

60 USLW 2046

UNITED STATES of America, Plaintiff-Appellant, v. Jesse Lee SHAW, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellant, v. Anthony WILSON, Defendant-Appellee.

Nos. 90-50242, CR-89-0243-TJH-2.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1991.

Decided June 11, 1991.

Thomas H. Bienert, Jr., Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.

Paul E. Potter, Potter & Cohen, Pasadena, Cal., Robert K. Weinberg, Weinberg & Weinberg, Irvine, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before CANBY, Jr. and RYMER, Circuit Judges, and LEVI, ^* District Judge.

RYMER, Circuit Judge:

Defendants Shaw and Wilson were convicted for distributing a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1). The district court sentenced them as though they had distributed "cocaine" as opposed to "cocaine base" because it held that "cocaine base" only refers to cocaine compounds containing a hydroxylion and the government had failed to show that the rock cocaine involved in this case contained a hydroxylion. The government appeals the sentence on the ground that the district court applied an erroneous definition of "cocaine base." We vacate and remand.

I

Shaw was charged with three counts of distributing a substance containing cocaine base in violation of 21 U.S.C. Sec. 841(a)(1). Two of the counts were for distributing more than 50 grams, and the total amount charged in the three counts was 223.8 grams. Wilson was charged with one count of distributing a substance containing cocaine base, in the amount of 136 grams.

At trial, the government presented expert testimony that the substance the defendants distributed was cocaine base. The government's chemist testified that the substances in question were rock cocaine. He also testified that the cocaine compound in the rock cocaine was cocaine base (C17 H21 O4 N), as compared with cocaine hydrochloride (C17 H41 O4 N.HCl). He explained that one makes rock cocaine by combining cocaine hydrochloride with water and sodium bicarbonate, and that process neutralizes the hydrochloride so that the C17 H21 O 4 N.HCl compound is reduced to the C17 H21 O4 N compound. Because the melting point of rock cocaine is much lower than cocaine hydrochloride, the chemist explained that it can be smoked rather than snorted, which allows it to be absorbed into the bloodstream much more quickly than cocaine hydrochloride.

The district court instructed the jury that to find the defendants guilty, it did not need to find that the defendants knew that the substance they distributed was cocaine base as long as it found that they intentionally distributed some controlled substance. The jury found both Shaw and Wilson guilty.

At sentencing, the defendants argued that they could only be sentenced for distributing "cocaine" and not "cocaine base" because the government's chemist had failed to distinguish adequately between the two when he testified that the substance involved was cocaine base. The penalties for distributing cocaine base are much more severe than the penalties for distributing cocaine. Because both Shaw and Wilson distributed between 50 and 500 grams of the controlled substance, they would be subject to a 10 year statutory minimum sentence if the substance were cocaine base, 21 U.S.C. Sec. 841(b)(1)(A)(iii), but they would not be subject to any statutory minimum if it were cocaine, 21 U.S.C. Sec. 841(b)(1)(C). Under the sentencing guidelines, Shaw's and Wilson's base offense levels would be 34 and 32, respectively, if the substance were cocaine base, but they would be 20 and 18, respectively, if it were cocaine. U.S.S.G. Sec. 2D1.1.

Shaw and Wilson contend that the government failed to establish that the substance was cocaine base because they claim that the legal definition of "cocaine base" is a cocaine compound containing a hydroxylion (OH-) such that it is a "base," as that term is used in chemistry. Because the government's expert witness did not say anything about the presence of a hydroxylion, the defendants contend they could only be sentenced under the lesser penalties for cocaine rather than the higher penalties for cocaine base.

The government responds that defining cocaine base as a cocaine compound containing a hydroxylion is not the only way it can be defined. The government's position is that so long as cocaine base is objectively distinguished from cocaine hydrochloride, a defendant may be sentenced for distributing cocaine base. In this case, the chemist testified that cocaine base has a distinguishable chemical formula and has different properties from cocaine hydrochloride, and he identified the substance involved here as cocaine base. Thus, the government contends, the defendants are subject to the higher penalties for cocaine base.

The district court agreed with the defendants' definition of cocaine base and concluded that they could only be sentenced for distributing cocaine because the evidence did not establish that the substance in this case contained a hydroxylion. It therefore sentenced Shaw to 78 months, at the top of the guideline range for an offense level of 20 and a criminal history category of V, and it sentenced Wilson to 35 months, in the middle of the range for an offense level of 18 and a criminal history category of II. The government appeals.

II

The government may appeal the district court's sentence because it was imposed in violation of 21 U.S.C. Sec. 841(b)(1)(A)(iii) and because it was imposed as the result of an incorrect application of the guidelines. 18 U.S.C. Sec. 3742(b). The interpretation of the term "cocaine base" in 21 U.S.C. Sec. 841(b) and U.S.S.G. Sec. 2D1.1 is a legal question, which we review de novo. See United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.) (definition of "lascivious" is matter of law reviewed de novo), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987).

The defendants rely on two cases to show that the legal definition of cocaine base is a cocaine compound that contains a hydroxylion. First, the District of Columbia Circuit held that 21 U.S.C. Sec. 841(b) is not unconstitutionally vague for failing to define cocaine base. United States v. Brown, 859 F.2d 974 (D.C.Cir.1988) (per curiam). Although the court did not expressly state what the correct definition of cocaine base is, it stated that the government had adopted the nomenclature of organic chemistry and defined cocaine base as any cocaine with the hydroxyl radical (OH-). ¹ Id. at 975-76. The court reasoned that this chemical definition excludes salt forms of cocaine and therefore is not unconstitutionally vague because it performs a limiting function. Id. at 976.

We similarly held that 21 U.S.C. Sec. 841(b) was not unconstitutionally vague because the expert testimony in the case indicated that the term "cocaine base" excludes cocaine hydrochloride. United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir.1990). In a footnote, the Van Hawkins opinion stated: "The term 'cocaine base' is cocaine that contains an active hydroxylion. As such, it is distinguished from cocaine salts. The term cocaine base encompasses 'crack.' " Id. at 854 n. 2.

The defendants argue that these cases definitively establish that the definition of cocaine base is cocaine that contains a hydroxylion. We disagree. The holding of both of these cases is simply that 21 U.S.C. Sec. 841(b) is not unconstitutionally vague as long as cocaine base is defined so as to exclude cocaine salts. That holding, however, does not answer the question of what the correct definition of cocaine base is as a matter of statutory interpretation. We face that question for the first time in this case.

We construe the statute and the guidelines to be consistent with each other in their use of the term "cocaine base." The Sentencing Commission has explained that it "used the sentences provided in, and equivalences derived from, the statute (21 U.S.C. Sec. 841(b)(1)), as the primary basis for the guideline sentences." U.S.S.G. Sec. 2D1.1, comment. (n.10). Thus, we presume that the Commission intended the terms they used to have the same meanings as the terms Congress used.

Neither the statute nor the guideline define "cocaine base." The commentary to the guideline, however, equates cocaine base with "crack." U.S.S.G. Sec. 2D1.1, comment. (n.10, Drug Equivalency Tables) ("1 gm of Cocaine Base ('Crack') equals 100 gm of cocaine/20 gm of heroin"). The term "crack" generally refers to "[v]ery pure cocaine intended for smoking rather than inhalation." New Dictionary of American Slang 85 (R. Chapman ed.1986). It is synonymous with "rock" cocaine. Id. at 361 (defining "rock" as "[a] small cube of very pure cocaine, intended for smoking rather than inhalation").

The legislative history of 21 U.S.C. Sec. 841(b) is consistent with the Commission's interpretation. Congress amended Sec. 841(b) in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, Sec. 1002(2), 100 Stat....