968 F.2d 158 (2nd Cir. 1992), 1082, United States v. Jackson

Docket Nº:1082, Docket 91-1664.
Citation:968 F.2d 158
Party Name:UNITED STATES of America, Appellant, v. Frank JACKSON, Defendant-Appellee.
Case Date:June 15, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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968 F.2d 158 (2nd Cir. 1992)

UNITED STATES of America, Appellant,


Frank JACKSON, Defendant-Appellee.

No. 1082, Docket 91-1664.

United States Court of Appeals, Second Circuit

June 15, 1992

Argued March 16, 1992.

Thomas McC. Souther, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Annmarie Levins, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellant.

David B. Levitt, The Legal Aid Society, Federal Defender Services Appeals Unit, New York City, for defendant-appellee.

Before: MESKILL and PRATT, Circuit Judges, and NICKERSON, [*] District Judge.

MESKILL, Circuit Judge:

The government appeals from a decision entered in the United States District Court for the Southern District of New York, Lasker, J., declaring the enhanced penalty provisions of 21 U.S.C. § 841(b) and United States Sentencing Guidelines (Guidelines) § 2D1.1 void for vagueness because the provisions do not define the term "cocaine base." United States v. Jackson, 768 F.Supp. 97 (S.D.N.Y.1991). Those provisions impose substantially greater sentences for offenses involving cocaine base

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than for offenses involving the same amount of cocaine. 21 U.S.C. § 841(b); Guidelines § 2D1.1.

Defendant-appellee Frank Jackson was convicted, upon a plea of guilty, of "possession with intent to distribute cocaine ('crack')" in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. Because the district court determined that the enhanced penalty provisions were unconstitutionally vague, it sentenced Jackson to the lesser punishment that would have been proper if the substance involved in the offense had been cocaine.


In May 1989 police officers stopped a car in which Jackson and co-defendant Frank Culmer were passengers. The police found a brown paper bag containing 300 grams of a substance the government identified as cocaine base or "crack" and 125 grams of a substance the government identified as cocaine. Jackson was charged with one count of unlawfully, intentionally and knowingly possessing with intent to distribute approximately 300 grams of mixtures and substances that contain a detectable amount of cocaine base in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2, and one count of unlawfully, intentionally and knowingly possessing with intent to distribute approximately 125 grams of mixtures and substances that contain a detectable amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. Jackson entered a plea of guilty on the first count of possession with intent to distribute cocaine base. The second count was dismissed.

At his plea allocution Jackson explained that Culmer had told him that Culmer could get some "crack" and promised that if Jackson accompanied him, Culmer would give Jackson a share of the proceeds from a drug sale. Judge Lasker specifically asked Jackson if Jackson knew that the substance in Culmer's possession was "crack." Jackson responded "yes."

Despite this plea, Jackson later professed not to know what type of drugs Culmer intended to purchase. In a letter to Judge Lasker in connection with his sentencing Jackson wrote that Culmer "never even told me what kind of drugs or how much he was going to get but I also figured it would be some types [sic] of cocaine."

After Jackson pleaded guilty, a report of the Drug Enforcement Administration (DEA) Laboratory, dated June 2, 1989, identified the alleged "crack" cocaine as cocaine base with a purity of 27 percent. On November 8, 1990, in response to the substance's low purity level, Jackson moved for either an order directing the government to produce samples of the substance alleged to be cocaine base or an order directing retesting by the government chemist and a precise description of the procedures used by the chemist. In an affidavit in support of the motion, defense expert Dr. Morris S. Zedeck explained why a retesting was necessary and described the test to be used. Judge Lasker responded to the motion by permitting Dr. Zedeck and another doctor to retest the alleged cocaine base.

After performing two tests on the sample Dr. Zedeck concluded that the substance was cocaine base. Because the substance was highly impure, however, he questioned whether the substance could have been used as "crack." Specifically Dr. Zedeck's conclusion was as follows:

Based on the GC/MS scans, the ion ratios, the solvents used to extract the pellets and the volumes of solvent employed, the data indicate that the material was cocaine base. There are several indications that this sample of "crack" is highly impure. First, the DEA calculated that the sample contained 27% cocaine. In our limited study to determine form of cocaine and not quantitation, using only a two point standard curve, our data are similar with those of the DEA; we found the sample to contain 22.7% cocaine. The form of the material being soft, sticky, oily and brownish indicates the presence of impurities. Pure cocaine would not have left an oily residue after ether extraction. Crack is supposed to be a whitish, dried, hard pellet. It is

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difficult to predict whether this material could have been used as crack.

(emphasis added).

At sentencing Jackson contended that the provisions that punish cocaine base offenses more severely than offenses involving cocaine are unconstitutional because they are impermissibly vague with regard to what constitutes cocaine base.

The district court agreed with Jackson and held that the failure of the statute and Guidelines to define "cocaine base" rendered the enhanced penalty provisions unconstitutionally vague both on their face and as applied to Jackson's case. Troubling to the court was the failure of the courts of appeals to reach a consensus as to the meaning of "cocaine base." The court reasoned that the provisions were void for vagueness because "the substance in question may or may not be cocaine base depending upon which definition the chemist, the prosecutor or the court chooses to adopt." Jackson, 768 F.Supp. at 101.

Accordingly at sentencing Judge Lasker calculated Jackson's offense level based on possession of cocaine rather than possession of cocaine base. This resulted in a Guidelines range of 63 to 78 months. The judge sentenced Jackson to 63 months imprisonment followed by a three year term of conditional supervised release. The government brought this appeal in response to the court's ruling on the constitutionality of section 841(b) and Guidelines § 2D1.1 and its sentencing of Jackson.


In 1986 Congress passed the Anti-Drug Abuse Act that, inter alia, amended 21 U.S.C. § 841(b)(1) to provide for enhanced penalties for possession with intent to distribute specified amounts of controlled substances. See P.L. 99-570, § 1002(2). As a result, section 841(b)(1) and the corresponding Guideline, § 2D1.1, impose a substantially greater penalty for possession with intent to distribute cocaine base than for possession with intent to distribute cocaine. The enhanced penalty provisions' failure to define "cocaine base" has generated numerous appeals. See, e.g., United States v. Shaw, 936 F.2d 412, 413-16 (9th Cir.1991); United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 887, 116 L.Ed.2d 791 (1992); United States v. Turner, 928 F.2d 956, 959-60 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991); United States v. Avant, 907 F.2d 623, 624-27 (6th Cir.1990); United States v. Pinto, 905 F.2d 47, 49-50 (4th Cir.1990); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.1989); United States v. Brown, 859 F.2d 974, 975-77 (D.C.Cir.1988) (per curiam).

Section 841(b) imposes mandatory minimum prison terms for narcotics offenses that involve specified amounts of controlled substances. 21 U.S.C. § 841(b). For example, an individual convicted of possession with intent to distribute five kilograms of a mixture or substance containing a detectable amount of "cocaine, its salts, optical and geometric isomers, and salts of isomers" faces a minimum prison term of ten years, 21 U.S.C. § 841(b)(1)(A)(ii); for possession of 500 grams, the minimum prison term is five years, id. § 841(b)(1)(B)(ii). A much smaller amount of cocaine base is required to trigger the same penalties. Possession with intent to distribute merely fifty grams of "cocaine base" triggers the ten year mandatory minimum, id. § 841(b)(1)(A)(iii), while only five grams results in the mandatory minimum of five years, id. § 841(b)(1)(B)(iii).

Guidelines § 2D1.1 sets sentencing ranges for controlled substance offenses based on the sentences mandated by section 841(b), see Guidelines § 2D1.1, Application Note 10, and uses the same terminology as the statute.

The impact of differentiating between cocaine and cocaine base in Jackson's case is substantial. Jackson was convicted of possession with intent to distribute 300 grams of cocaine. If the substance is classified as "cocaine" the statute imposes no mandatory minimum and the Guidelines sentencing range under the applicable criminal history category of IV--before any reductions--is 63 to 78 months. If the substance is classified as "cocaine base" the...

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