U.S. v. Alton

• Decision Date: 04 August 1995
• Docket Number: Nos. 94-3313,94-3314,s. 94-3313
• Citation: 60 F.3d 1065
• Parties: UNITED STATES of America, Appellant, v. Darnell Lee ALTON; Howard Scott; Gina Lewis; Angela Alton. . Submitted Pursuant to Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 1065

60 F.3d 1065

UNITED STATES of America, Appellant, v. Darnell Lee ALTON; Howard Scott; Gina Lewis; Angela Alton.

Nos. 94-3313, 94-3314.

United States Court of Appeals Third Circuit.

Submitted Pursuant to Third Circuit

LAR 34.1(a)

Argued June 27, 1995.

Decided Aug. 4, 1995.

Frederick W. Thieman, U.S. Atty., Paul J. Brysh (argued), Asst. U.S. Atty., Pittsburgh, PA, for appellant and cross-appellee.

Gary B. Zimmerman (argued), Pittsburgh, PA, for appellee and cross-appellant.

Before: HUTCHINSON, ROTH and GARTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

I.

Appellee Darnell Alton was one of four individuals charged in an indictment alleging various drug offenses. Count One charged Alton with conspiracy to possess and distribute cocaine and cocaine base ("crack cocaine"), in violation of 21 U.S.C. Sec. 846; Count Two charged Alton with possession with intent to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1); Count Three charged Alton with possession with the intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1).

Between 1990 and 1992, Alton was a heavy crack cocaine trafficker in the Pittsburgh area. He employed a number of people who cooked cocaine powder into crack, stored it, and distributed it on the street. On July 23, 1991, following a tip from a confidential informant that Alton was in possession of a large quantity of cocaine, which he was selling from his house, police executed search warrants for Alton's person, residence, and car. Crack cocaine was found on Alton's person and cocaine powder and cash was found at Alton's residence. Three members of Alton's operation testified at trial about Alton's drug transactions.

Alton was found guilty at trial on Counts One and Two but was acquitted on Count Three. At sentencing, the district court departed downward from the United States Sentencing Guidelines ("Guidelines") range for cocaine base offenses and imposed a ten-year term of imprisonment and a five-year term of supervised release. The Government filed this appeal to challenge the district court's failure to follow the provisions of the Guidelines as they apply to offenses involving cocaine base. Because we find that the district court erred in departing downwards from the applicable guideline range, we will vacate the sentence and remand for resentencing. ¹

II.

A.

At issue in this case are the provisions of the Sentencing Guidelines (U.S.S.G. Sec. 2D1.1) that impose more severe sentences on those prosecuted for distribution or possession with intent to distribute crack cocaine ² than on those prosecuted for similar crimes involving cocaine powder. ³ The disparity in the treatment of offenses involving the two substances originated in congressional action.

Pursuant to the Anti-Drug Abuse Act of 1986, Congress established basic sentencing levels for crack cocaine offenses. Congress amended 21 U.S.C. Sec. 841 to provide for a 100:1 ratio in the quantities of cocaine powder and crack cocaine that trigger mandatory minimum penalties. Amended 21 U.S.C. Sec. 841(b)(1)(A) establishes a mandatory ten-year term of imprisonment for offenses involving 5 kilograms of cocaine or 50 grams of cocaine base. And 21 U.S.C. Sec. 841(b)(1)(B) provides for a mandatory five-year term of imprisonment for offenses involving 500 grams of cocaine or 5 grams of cocaine base.

Based on those statutory provisions, the Drug Quantity Table of U.S.S.G. Sec. 2D1.1 treats any quantity of cocaine base as the equivalent of 100 times the same quantity of cocaine powder. Moreover, the Drug Equivalency Tables, U.S.S.G. Sec. 2D1.1, pursuant to which the penalty for an offense involving one controlled substance is tied to or converted to the weight of an unrelated controlled substance for sentencing purposes, equate one gram of cocaine base to 20 kilograms of marijuana but one gram of cocaine to 200 grams of marijuana.

B.

Although Alton was found guilty of crack cocaine offenses, the district court departed downward from the sentence range that the Guidelines prescribe for such offenses. The court attributed 422.68 grams of crack cocaine and 235.5 grams of cocaine powder to Alton. Pursuant to the Drug Equivalency Table, U.S.S.G. Sec. 2D1.1, the court converted the 422.68 grams of crack cocaine to 8453.6 kilograms of marijuana and the 235.5 grams of cocaine powder to 47.1 kilograms of marijuana, arriving at a total of 8500.7 kilograms of marijuana, which corresponds to a base offense level of 34. The court added 4 levels to the base offense level pursuant to U.S.S.G. Sec. 3B1.1(a), based on Alton's role in the offense, but granted a 3 point reduction for acceptance of responsibility, pursuant to U.S.S.G. Sec. 3E1.1.

Thus, the court fixed the total offense level at 35, which provides for a sentence range of 168-210 months. The court granted a downward departure from that range based on 18 U.S.C. Sec. 3553(b) and U.S.S.G. Sec. 5K2.0, ⁴ concluding that the Sentencing Commission did not adequately consider a mitigating factor--the disparate impact that its policies would have on African-American males--when it developed guideline ranges for crackcocaine.

⁵

In justifying the departure, the court further relied on indications that Congress has reconsidered the rationality of the 1 to 100 ratio. Moreover, the court cited the 1993 annual report of the United States Sentencing Commission, which indicates that for the period from October 1, 1992, through September 30, 1993, "95.1 percent of the offenders incarcerated and subjected to the 1 to 100 ratio between crack and powdered cocaine [were] either black or Hispanics." Appendix at 846, 872-73.

The court additionally discussed the Drug Equivalency Tables, U.S.S.G. Sec. 2D1.1. The court concluded that the conversion of one gram of cocaine base to 20 kilograms of marijuana, pursuant to those tables, is arbitrary and capricious. Citing Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) as authority, the court elected to ignore what it termed the "improper agency action" establishing the equivalency and to apply the mandatory minimum sentence established by Congress for similar offenses involving cocaine powder.

III.

A.

21 U.S.C. Sec. 841(a)(1) and (b)(1)(A)(ii) & (iii) are the statutory provisions that establish a mandatory minimum ten year penalty for offenses involving cocaine powder and crack cocaine. The statute provides a 100:1 ratio between the amounts of crack cocaine and of cocaine powder which are required to activate the minimum mandatory penalty. Both parties acknowledge that the statute is constitutional on its face. However, the Government challenges the district court's conclusion that the guideline treatment of crack cocaine offenses is arbitrary and capricious. Moreover, the Government challenges the district court's downward departure from the Guidelines based on the disproportionate impact of the severe penalties for crack cocaine offenses on African-Americans.

B.

The district court held that the Sentencing Commission acted in an arbitrary and capricious manner by providing for the conversion of one gram of cocaine base to 20 kilograms of marijuana for sentencing purposes, pursuant to the Drug Equivalency Tables in U.S.S.G. Sec. 2D1.1. The court concluded that the Sentencing Commission violated the informal rulemaking procedures of the Administrative Procedures Act, 5 U.S.C. Sec. 553, and that the guideline provisions under which Alton was sentenced are therefore void. ⁶

In Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. at 43, 103 S.Ct. at 2868-67, the Supreme Court held that an agency adopting a rule pursuant to informal rulemaking procedures "must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' " The Commission provides such an explanation for the challenged Guideline provisions in U.S.S.G. Sec. 2D1.1, comment 10, which states that the Commission "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."

As the district court held, 21 U.S.C. Sec. 841(b)(1) does not equate crack cocaine to another controlled substance or authorize the use of an equivalency table pursuant to which the penalty for an offense involving one controlled substance is tied to or converted to the weight of an unrelated controlled substance. Nonetheless, the statute does establish the 100:1 ratio of cocaine powder to crack cocaine. The same ratio is reflected in the Drug Equivalency Tables, pursuant to which 1 gram of cocaine is equivalent to 200 grams of marijuana and 1 gram of crack cocaine is equivalent to 20 kilograms of marijuana. The Commission established drug equivalences as "a means for combining differing controlled substances to obtain a single offense level." U.S.S.G. Sec. 2D1.1, comment 10. Clearly the Commission looked to the statute as a guide in formulating the equivalences. The statute in turn was based on Congress's consideration of available data on the two forms of cocaine.

We have upheld the constitutionality of both the federal drug statutes (21 U.S.C. Secs. 841(b)(1) & 846) and the guideline provisions (U.S.S.G. Sec. 2D1.1) that treat crack cocaine offenses more severely than offenses involving an equal quantity of cocaine powder. See United States v. Frazier, 981 F.2d at 92 (holding that distinctions between crack cocaine and cocaine powder for sentencing purposes do not constitute an equal protection violation and that the 100:1 ratio does not constitute cruel and unusual punishment); United States v. Jones, 979 F.2d 317 (3d Cir.1992) (holding guideline provisions imposing higher offense levels for offenses involving crack...