DePierre v. United States, 09–1533.

• Decision Date: 09 June 2011
• Docket Number: No. 09–1533.,09–1533.
• Citation: 180 L.Ed.2d 114,564 U.S. 70,131 S.Ct. 2225
• Parties: Frantz DePIERRE, Petitioner, v. UNITED STATES.
• Court: U.S. Supreme Court

564 U.S. 70

131 S.Ct. 2225

180 L.Ed.2d 114

Frantz DePIERRE, Petitioner,

v.UNITED STATES.

No. 09–1533.

Supreme Court of the United States

Argued Feb. 28, 2011.

Decided June 9, 2011.

Andrew J. Pincus, Washington, DC, for Petitioner.

Nicole A. Saharsky, Washington, DC, for Respondent.

Jeffrey A. Meyer, New Haven, CT, Eduardo A. Masferrer, Masferrer & Hurowitz, P.C., Boston, MA, Andrew J. Pincus, Charles A. Rothfeld, Paul W. Hughes, Michael B. Kimberly, Mayer Brown LLP, Washington, DC, for Petitioner.

Neal Kumar Katyal, Acting Solicitor General, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Nicole A. Saharsky, Benjamin J. Horwich, Assistants to the Solicitor General, Deborah Watson, Washington, D.C., for Respondents.

Justice SOTOMAYOR delivered the opinion of the Court.

At the time of petitioner's conviction and sentence, federal law mandated a minimum 10–year sentence for persons convicted of certain drug offenses, 21 U.S.C. § 841(a), including those involving 50 grams or more of "a mixture or substance ... which contains cocaine base," § 841(b)(1)(A) (iii), and a minimum 5–year sentence for offenses involving 5 grams or more of the same, § 841(b)(1)(B)(iii). This case requires us to decide whether the term "cocaine base" as used in this statute refers generally to cocaine in its chemically basic form or exclusively to what is colloquially known as "crack cocaine." We conclude that "cocaine base" means the former.

I

A

As a matter of chemistry, cocaine is an alkaloid with the molecular formula C ¹⁷ H ²¹ NO ⁴. Webster's Third New International Dictionary 434 (2002). An alkaloid is a base—that is, a compound capable of reacting with an acid to form a salt.¹ Id., at 54, 180; see also Brief for Individual Physicians and Scientists as Amici Curiae 2–3 (herein-after Physicians Brief). Cocaine is derived from the coca plant native to South America. The leaves of the coca plant can be processed with water, kerosene, sodium carbonate, and sulphuric acid to produce a paste-like substance. R. Weiss, S. Mirin, & R. Bartel, Cocaine 10 (2d ed.1994). When dried, the resulting "coca paste" can be vaporized (through the application of heat) and inhaled, i.e., "smoked." See United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 11–12 (1995) (hereinafter Commission Report). Coca paste contains C ¹⁷ H ²¹ NO ⁴—that is, cocaine in its base form.

Dissolving coca paste in water and hydrochloric acid produces (after several intermediate steps) cocaine hydrochloride, which is a salt with the molecular formula C ¹⁷ H ²² NO ⁴⁺ Cl ^-. Id., at 12; Physicians Brief 3. Cocaine hydrochloride, therefore, is not a base. It generally comes in powder form, which we will refer to as "powder cocaine." It is usually insufflated (breathed in through the nose), though it can also be ingested or diluted in water and injected. Because cocaine hydrochloride vaporizes at a much higher temperature than chemically basic cocaine (at which point the cocaine molecule tends to decompose), it is generally not smoked. See Commission Report 11, n. 15, 12–13.

Cocaine hydrochloride can be converted into cocaine in its base form by combining powder cocaine with water and a base, like sodium bicarbonate (also known as baking soda). Id., at 14. The chemical reaction changes the cocaine hydrochloride molecule into a chemically basic cocaine molecule, Physicians Brief 4, and the resulting solid substance can be cooled and broken into small pieces and then smoked, Commission Report 14. This substance is commonly known as "crack" or "crack cocaine."² Alternatively, powder cocaine can be dissolved in water and ammonia (also a base); with the addition of ether, a solid substance—known as "freebase"—separates from the solution, and can be smoked. Id., at 13. As with crack cocaine, freebase contains cocaine in its chemically basic form. Ibid.

Chemically, therefore, there is no difference between the cocaine in coca paste, crack cocaine, and freebase—all are cocaine in its base form. On the other hand, cocaine in its base form and in its salt form (i.e., cocaine hydrochloride) are chemically different, though they have the same active ingredient and produce the same physiological and psychotropic effects. See id., at 14–22. The key difference between them is the method by which they generally enter the body; smoking cocaine in its base form—whether as coca paste, freebase, or crack cocaine—allows the body to absorb the active ingredient quickly, thereby producing a shorter, more intense high than obtained from insufflating cocaine hydrochloride.Ibid. ; see generally Kimbrough v. United States, 552 U.S. 85, 94, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

B

In 1986, increasing public concern over the dangers associated with illicit drugs—and the new phenomenon of crack cocaine in particular—prompted Congress to re-vise the penalties for criminal offenses involving cocaine-related substances. See id., at 95–96, 128 S.Ct. 558. At the time, federal law generally tied the penalties for drug offenses to both the type of drug and the quantity involved, with no provision for mandatory minimum sentences. See, e.g., § 841(b)(1) (1982 ed., Supp. III). After holding several hearings specifically addressing the emergence of crack cocaine, Congress enacted the Anti–Drug Abuse Act of 1986 (ADAA), 100 Stat. 3207, which provided mandatory minimum sentences for controlled-substance offenses involving specific quantities of drugs.

As relevant here, the ADAA provided a mandatory 10–year sentence for certain drug offenses involving 5 kilograms or more of "a mixture or substance containing a detectable amount of " various cocaine-related elements, including coca leaves, cocaine, and cocaine salts; it also called for the same sentence for offenses involving only 50 grams or more of "a mixture or substance ... which contains cocaine base ." ADAA, § 1002, 100 Stat. 3207–2 (amending §§ 841(b)(1)(A)(ii)-(iii) ) (emphasis added). The ADAA also stipulated a mandatory 5–year sentence for offenses involving 500 grams of a mixture or substance containing coca leaves, cocaine, and cocaine salts, or 5 grams of a mixture or substance containing "cocaine base." Id., at 3207–3 (amending §§ 841(b)(1)(B)(ii)-(iii) ).

Thus, the ADAA established a 100–to–1 ratio for the threshold quantities of cocaine-related substances that triggered the statute's mandatory minimum penalties. That is, 5 grams or more of "a mixture or substance ... which contains cocaine base" was penalized as severely as 100 times that amount of the other cocaine-related elements enumerated in the statute. These provisions were still in effect at the time of petitioner's conviction and sentence.³ See §§ 841(b)(1)(A)-(B) (2000 ed. and Supp. V).

The United States Sentencing Commission subsequently promulgated Sentencing Guidelines for drug-trafficking offenses . Under the Guidelines, the offense levels for drug crimes are tied to the drug type and quantity involved. See United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov.2010) (USSG). The Commission originally adopted the ADAA's 100–to–1 ratio for offenses involving "cocaine" and "cocaine base," though instead of setting only two quantity thresholds, as the ADAA did, the Guidelines "set sentences for the full range of possible drug quantities." Commission Report 1; see generally Kimbrough, 552 U.S., at 96–97, 128 S.Ct. 558.⁴

The original version of § 2D1.1(c) did not define "cocaine base" as used in that provision, but in 1993 the Commission issued an amendment to explain that " '[c]ocaine base,' for the purposes of this guideline, means 'crack,' " that is, "the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form." USSG App. C, Amdt. 487 (effective Nov. 1, 1993); see also USSG § 2D1.1(c), n. (D). The Commission noted that "forms of cocaine base other than crack (e.g., coca paste ...) will be treated as cocaine." USSG App. C, Amdt. 487.⁵

C

In April 2005, petitioner Frantz DePierre sold two bags of drugs to a Government informant. DePierre was subsequently indicted on a charge of distributing 50 grams or more of cocaine base under §§ 841(a)(1) and (b)(1)(A)(iii).⁶ At trial, a Government chemist testified that the substance in the bags, which weighed 55.1 grams, was "cocaine base." Tr. 488, 490. She was not able to identify any sodium bicarbonate. Id., at 499. A police officer testified that the substance in question was "off-white [and] chunky." Id., at 455.

DePierre asked the District Court to instruct the jury that, in order to find him guilty of distribution of cocaine base, it must find that his offense involved "the form of cocaine base known as crack cocaine." App. in No. 08–2101(CA1), p. 43. His proposed jury instruction defined "crack" identically to the Guidelines definition. See id., at 43–44; see also USSG § 2D1.1(c), n. (D). In addition, DePierre asked the court to instruct the jury that "[c]hemical analysis cannot establish a substance as crack because crack is chemically identical to other forms of cocaine base, although it can reveal the presence of sodium bicarbonate, which is usually used in the processing of crack." App. in No. 08–2101, at 44.

The court, however, instructed the jury that "the statute that's relevant asks about cocaine base. Crack cocaine is a form of cocaine base, so you'll tell us whether or not what was involved is cocaine base ... ." Tr. 585 (paragraph break omitted). The jury form asked whether the offense involved "over 50 grams of cocaine base." App. to Pet. for Cert. 17a. The jury found DePierre guilty of distributing 50 grams or more of cocaine base, and the court sentenced DePierre to 120 months in prison as required by the statute.

The United States Court of Appeals for the First Circuit affirmed, rejecting DePierre's argument that § 841(b)(1)(A)(iii) should be read...