U.S. v. Bines
| Decision Date | 15 August 1995 |
| Docket Number | 94-50382,Nos. 94-50082,94-50212,s. 94-50082 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Derrick BINES, Kenneth Ray Johnson, and Arnold Martin, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: Fletcher, Wiggins, and Fernandez, Circuit Judges.
Appellants Arnold Martin, Kenneth Ray Johnson, and Derrick Bines appeal their convictions and sentences on drug trafficking charges. We vacate Johnson and Martin's sentences and remand for resentencing in accordance with this disposition. We affirm all of the convictions and the sentence of Bines.
In 1990, the FBI began investigating a drug-trafficking organization that it suspected was distributing cocaine, cocaine base, and phencyclidine (PCP) from its base in South Central Los Angeles to street gangs in a number of U.S. cities. On July 16, 1992, the investigation resulted in the indictment of Bines, Johnson and Martin along with co-defendants Grandy, Ruiz, Gutierrez, and Mossette. Bines, Johnson, and Martin were charged as follows.
The Government indicted Bines on charges of conspiring to distribute cocaine base and cocaine in violation of 21 U.S.C. Sec. 846 (Count I), conspiring to distribute phencyclidine ("PCP") in violation of 21 U.S.C. Sec. 846 (Count II), and distributing and possessing with intent to distribute cocaine base, cocaine, or PCP in violation of 21 U.S.C. Sec. 841(a)(1) (Counts IX-XIV, XVI-XXV). In a superseding indictment, Bines was also charged with laundering monetary instruments in violation of 18 U.S.C. Secs. 1956(a)(1)(A) and 1956(a)(2) (Superseding Count).
Bines and the Government entered into a plea bargain agreement that provided that Bines would plead guilty to Counts I and II, and the Superseding Count. The agreement also provided that Bines would cooperate with the Government in return for the Government's recommendation of a one, two, or three-point downward departure, depending on the level of Bines' cooperation. In addition, the agreement stipulated that Bines' base offense level would be adjusted upward by four points for his role and downward three points for his acceptance of responsibility.
The district court sentenced Bines to concurrent 240-month prison terms for each of the three counts and a supervised release term of five years. The district court also imposed a fine of $50,000. On appeal, Bines challenges his sentence, claiming that the Government breached the plea agreement by recommending a two-point departure for his cooperation and that the district court erred by departing upward based on his role in the conspiracy.
The Government indicted Johnson on one count of conspiring to distribute cocaine base in violation of 21 U.S.C. Sec. 846 (Count I), and four Counts of distributing cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) (Counts III-VI). The Government also filed an information pursuant to 21 U.S.C. Sec. 851 for the purposes of enhancing Johnson's sentence. The information alleged that Johnson had previously been convicted of a felony drug offense in the State of Colorado.
Johnson moved to dismiss the indictment alleging, inter alia, that the Government had engaged in selective prosecution of African Americans. The district court denied the motion, and the jury found Johnson guilty on Counts I, III, and IV. The district court sentenced Johnson to concurrent 213 month prison terms for each count to run concurrently with the unexpired term of his Colorado federal sentence to be followed by ten years supervised release.
On appeal, Johnson challenges his conviction, claiming that the Government engaged in selective prosecution, 21 U.S.C. Sec. 841(b)(1)(A) is void for vagueness, his sentence constitutes cruel and unusual punishment, his counsel was ineffective, and there was insufficient evidence for his conviction. Johnson also challenges his sentence, claiming that the Government breached a plea agreement in a prior federal case in the District of Colorado. The parties agree that a limited remand is necessary so that the district court can resentence Johnson based on the correct amount of time spent in custody prior to sentencing.
The Government indicted Martin on charges of conspiring to distribute cocaine base and cocaine in violation of 21 U.S.C. Sec. 846 (Count I), and distributing cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) (Counts III and VI). Martin went to trial and the jury found him guilty on Counts I and III.
Martin was sentenced to a 121 month prison term and a supervised release term of ten years. On appeal, Martin challenges his conviction, claiming that the different penalties for crack and powder cocaine violate his right to due process, 21 U.S.C. Sec. 841(b)(1)(A) is void for vagueness, and his counsel was ineffective. Martin also challenges his sentence, arguing that the district court erred by failing to order a downward departure based on his claim of incomplete duress. The Government points out that the district court erroneously relied on a defective state court drug conviction to enhance the sentence and seeks a limited remand so that the supervised release term can be reduced to five years.
The district court had jurisdiction under 18 U.S.C. Sec. 3231. This court has jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742.
Both Johnson and Martin argue that 21 U.S.C. Sec. 841(b)(1)(A) is unconstitutionally vague because "cocaine base" and "cocaine," as defined in the statute, are essentially the same drug. 1 "We review de novo a challenge that a statute is unconstitutionally vague," United States v. Van Hawkins, 899 F.2d 852, 853 (9th Cir. 1990) (citing United States v. Stansell, 847 F.2d 609, 612 (9th Cir. 1988)), and affirm.
"In evaluating a question of vagueness, the court must look to the common understanding of the terms of a statute." United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989) (citing Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973)). A defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the law in question." Id. (citing United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir. 1985)). In addition, "the statute must 'establish minimal guidelines to govern law enforcement."' Van Hawkins, 899 F.2d at 854 (quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983)).
This court has held on a number of occasions that "cocaine base" in Sec. 841 is not unconstitutionally vague. See United States v. Davis, 36 F.3d 1424, 1434 (9th Cir. 1994); United States v. Shaw, 936 F.2d 412, 416 (9th Cir. 1991); Van Hawkins, 899 F.2d at 854; accord United States v. Brown, 859 F.2d 974 (D.C. Cir. 1988) (). The defendants' attempts to distinguish these cases are unavailing.
The defendants rely first on expert testimony at trial that "cocaine base," in the nomenclature of chemistry, is "'cocaine' without any distinction." RT 3/22/94 at 9-10. The defendants conclude that because the statute uses the interchangeable words -- "cocaine" and "cocaine base" -- to distinguish between powder and crack cocaine, it is impermissibly vague. Johnson also argues that the use of "cocaine base" to mean cocaine that contains a hydroxylion, is vague because the expert testified that there is no such thing as a "hydroxylion." The defendants' arguments fail because in Shaw, we canvassed the legislative history of section 841 and found no statements by Congress "indicating that 'cocaine base' refers to cocaine that is a 'base' for chemistry purposes." Shaw, 936 F.2d at 416; see also Fitzgerald, 882 F.2d at 398 (). In addition, we rejected a definition of cocaine base under section 841 as cocaine that contains a hydroxylion. Shaw, 936 F.2d at 415. Instead, the court concluded Congress intended "cocaine base" to include "crack" and "rock cocaine" which are cocaine forms that can be smoked. "Cocaine" and "cocaine base" are objectively distinguishable according to the court by their different functions and the effects of the substances. Id. We are bound by Shaw.
The defendants next argue that cocaine base and cocaine cannot be defined objectively because they perform identical functions. For example, they point to testimony that it is possible to smoke powder cocaine by combining it in a cigarette with baking soda and a drop of water, and cocaine base could be easily converted to powder cocaine by subjecting it to ether. However, the defendants' facial attack on the statute cannot succeed. Because no First Amendment interest is implicated by their claim, the defendants cannot rely on the possibility that the statute may be vague with respect to exotic uses of cocaine; instead, they must establish that section 841 is vague as applied in their case, and this they have failed to do. See Van Hawkins, 899 F.2d at 854 (citing United States v. Mazurie, 419 U.S. 544, 550 (1975)); Davis, 36 F.3d at 1434 (citing Maynard v. Cartwright, 486 U.S. 356, 361 (1988)).
The defendants' claim that section 841, which punishes possession of cocaine base much more harshly than possession of cocaine, provides no guidance to prosecutors is likewise without merit. Because the statute adequately distinguishes "cocaine base" from "cocaine," it does not permit prosecutors and law enforcement to act with unfettered discretion. See Van Hawkins, 899 F.2d at 854.
Finally, Martin claims that...
To continue reading
Request your trial