U.S. v. Angulo-Lopez, ANGULO-LOPE

• Decision Date: 26 October 1993
• Docket Number: D,ANGULO-LOPE,No. 92-6370,92-6370
• Citation: 7 F.3d 1506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlosefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1506

7 F.3d 1506

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos ANGULO-LOPEZ, Defendant-Appellant.

No. 92-6370.

United States Court of Appeals Tenth Circuit.

Oct. 26, 1993.

Kim Taylor, and Leslie M. Kaestner, Asst. U.S. Attys. (John E. Green, U.S. Atty., with them on the brief), Oklahoma City, OK, for plaintiff-appellee.

Susan M. Otto, Acting Federal Public Defender, Oklahoma City, OK, for defendant-appellant.

Before BRORBY, BARRETT, and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Juan Carlos Angulo-Lopez ¹ was convicted of eleven separate counts of drug trafficking, including conspiracy to distribute cocaine base, distribution of cocaine, and manufacture of cocaine base. Mr. Angulo-Lopez was sentenced, inter alia, to two concurrent terms of life imprisonment. He appeals asserting the disparity in sentences under the United States Sentencing Guidelines between powdered cocaine and cocaine base is violative of the Fifth and Eighth Amendments. He also claims insufficiency of the evidence on the conspiracy charge, and the district court improperly computed his offense level. We affirm.

The thrust of the Government's case was that Mr. Angulo-Lopez and his common law wife, Teresa Griffin, directed, operated, and retained profits from a cocaine distribution business. The two principals based in Houston with assistance from numerous other individuals charged in the conspiracy would: (1) transport multi-kilogram quantities of cocaine powder and cocaine base (crack) into the Oklahoma City area; (2) transport cash proceeds from the drug business to and from Oklahoma City; (3) convert cocaine powder into crack; and (4) distribute cocaine powder and crack in multi-kilogram quantities to their resellers in Oklahoma City. The operation involved fourteen participants charged as conspirators who allegedly distributed 47.82 kilograms of cocaine base.

I

Mr. Angulo-Lopez, who is black, asserts the disparity in sentences between cocaine and cocaine base falls with disparate impact on blacks. Mr. Angulo-Lopez points out that in the Anti-Drug Abuse Act of 1986, Congress equated one kilogram of crack to 100 kilograms of powdered cocaine for the purpose of sentencing. See U.S.S.G. § 2D1.1(C) (Drug Quantity Tables). At the sentencing hearing, Mr. Angulo-Lopez presented an associate professor of sociology who testified that in the Western District of Oklahoma blacks are defendants in 94.39% of all criminal cases involving crack. Therefore, Mr. Angulo-Lopez argues, the penalties imposed upon crack distributors fall with a disparate impact on a discrete racial group and thereby violate Mr. Angulo-Lopez' Equal Protection rights as guaranteed by the Fifth Amendment. Although Mr. Angulo-Lopez does not challenge the facial neutrality of the guidelines, he argues the practical result of their application discriminates against blacks as they are more likely to possess crack than other racial groups. Our review of federal constitutional questions is de novo. United States v. Buckner, 894 F.2d 975, 978 (8th Cir.1990).

For us to apply a strict scrutiny standard of review, Mr. Angulo-Lopez would have to allege more than a disproportionate impact, he must show a discriminatory purpose. See United States v. Galloway, 951 F.2d 64, 65 (5th Cir.1992). " '[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.' " United States v. Easter, 981 F.2d 1549, 1559 (10th Cir.1992) (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979)), cert. denied, --- U.S. ----, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993). Because the record lacks any evidence indicating Congress possessed discriminatory motives in creating the sentencing distinction between powdered cocaine and crack, and other courts, upon examining the legislative history have discovered no race-based animus, we recognize the discrepancy was created without any racial bias. See United States v. Frazier, 981 F.2d 92, 95 (3d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1661, 123 L.Ed.2d 279 (1993); Galloway, 951 F.2d at 65-66. Therefore, the sentencing disparity is subject only to rational basis review. Frazier, 981 F.2d at 95.

This Circuit has repeatedly upheld the validity of the statutory distinction in the sentencing levels between powdered cocaine and cocaine base as rational. See Easter, 981 F.2d at 1559; United States v. Robinson, 978 F.2d 1554, 1565 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1855, 123 L.Ed.2d 478 (1993); United States v. Turner, 928 F.2d 956, 958-60 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991). Mr. Angulo-Lopez asks us to distinguish his claim from the existing Tenth Circuit cases since he substantiated his claim of disparate impact with statistical evidence, whereas the defendants in the other cases did not. "Numerical impact, of course, may not alone support a finding of invidious discrimination in a facially neutral law." United States v. Reece, 994 F.2d 277, 278 (6th Cir.1993). The proper focus of the analysis is not on the statistically disparate impact but rather on whether Congress had a rational basis for creating such a distinction. Other circuits have also joined our determination that Congress indeed had rational justification in creating the sentencing disparity. ² See Frazier, 981 F.2d at 95; Galloway, 951 F.2d at 65-66; United States v. Lawrence, 951 F.2d 751, 754-56 (7th Cir.1991); United States v. Pickett, 941 F.2d 411, 418 (6th Cir.1991); United States v. Thomas, 900 F.2d 37, 39-40 (4th Cir.1990); Buckner, 894 F.2d at 978-90; United States v. Cyrus, 890 F.2d 1245, 1248 (D.C.Cir.1989); United States v. Malone, 886 F.2d 1162, 1166 (9th Cir.1989); United States v. Solomon, 848 F.2d 156, 157 (11th Cir.1988); United States v. Collado-Gomez, 834 F.2d 280, 280-81 (2d Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). Consequently, we reject Mr. Angulo-Lopez' Equal Protection claim.

II

Mr. Angulo-Lopez asserts the punishment of life imprisonment without the possibility of parole violates the Eighth Amendment prohibition against cruel and unusual punishment as it is disproportionate to his offense. The evidence established that Mr. Angulo-Lopez was involved in a conspiracy to distribute 47.82 kilograms of cocaine base. ³ In Harmelin v. Michigan, --- U.S. ----, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), a plurality of the Supreme Court upheld a sentence of life without the possibility of parole for possession of 650 grams of cocaine against an Eighth Amendment challenge. The Court, however, could not reach a consensus on whether a proportionality review should exist, or the appropriate standards to apply when reviewing a sentence for proportionality. Thus, Harmelin provides no guidance in articulating the proper approach for an Eighth Amendment review. Nevertheless because the Court affirmed a sentence of life imprisonment for the possession of 650 grams of powdered cocaine in Harmelin, we can logically assume that the defendant's life sentence for masterminding a conspiracy involving 47.82 kilograms of crack cocaine does not violate the Eighth Amendment.

Prior to Harmelin, the Supreme Court held that the Eighth Amendment analysis requires a three-step proportionality review. Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983). "A court's ... analysis ... should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292, 103 S.Ct. at 3011. In Solem, the Supreme Court invalidated a state statute that prescribed life imprisonment without parole when applied to a recidivist with a series of nonviolent prior offenses. Without determining whether Harmelin overruled Solem, we will address Mr. Angulo-Lopez' proportionality concerns under Solem. Although Mr. Angulo-Lopez does not challenge the second and third criteria under Solem, he asserts that the harshness of the punishment does not reflect the gravity of the offense. The evidence before the trial court at sentencing establishes the rapid addiction of crack users. The gravity of the offenses of manufacturing and distributing crack is quite severe. No doubt thousands of lives have been ruined and even lost as a result of crack use and dependence. Harsher penalties for crimes involving crack regularly survive Eighth Amendment proportionality review. Frazier, 981 F.2d at 95-96; United States v. House, 939 F.2d 659, 664 (8th Cir.1991); Buckner, 894 F.2d at 980-86; Cyrus, 890 F.2d at 1248. Therefore, the sentence of life imprisonment without parole is not disproportionate to the crime of conspiracy to distribute 47.82 kilograms of cocaine base under Eighth Amendment analysis.

III

Mr. Angulo-Lopez asserts the evidence is insufficient to sustain the conspiracy conviction. Specifically, Mr. Angulo-Lopez argues the evidence establishes only a series of unrelated cocaine transactions as the people involved acted only for their individual interests. Mr. Angulo-Lopez claims the evidence fails to show the conspirators acted in concert for the mutual benefit, and thus the government failed to prove the critical issue of interdependence.

A conspiracy conviction requires the Government to prove, that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, that the defendant knowingly and voluntarily became a part of it, and that the alleged coconspirators were interdependent. United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993). To establish that...