U.S. v. Booker

• Decision Date: 16 November 1995
• Docket Number: No. 95-1747,95-1747
• Citation: 70 F.3d 488
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry BOOKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 488

70 F.3d 488

64 USLW 2367

UNITED STATES of America, Plaintiff-Appellee, v. Henry BOOKER, Defendant-Appellant.

No. 95-1747.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 3, 1995.

Decided Nov. 16, 1995.

Andrew B. Baker, Jr., Asst. U.S. Atty. (argued), Dyer, IN, for United States.

Paul J. Newman, South Bend, IN, Thomas A. Durkin (argued), Michigan City, IN, for Henry Booker.

Before CUMMINGS, ESCHBACH and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

This appeal presents the question of whether the statutory and sentencing guideline provisions mandating separate penalties for the distribution of "cocaine" and "cocaine base" are ambiguous. Henry Booker pled guilty to the distribution of crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1). He received a sentence of 20 years of imprisonment. ¹ 1] Booker was sentenced under the statutory and guideline provisions for "cocaine base." If the penalties for "cocaine" had been applied, his sentence would have been approximately halved: his guideline range would have been 100-125 months.

Booker argues that in scientific terms, "cocaine" and "cocaine base" are synonymous. According to Booker, a scientist attempting to interpret the statutory and guideline provisions would not know whether to sentence him for "cocaine" or "cocaine base." Thus, he contends that the rule of lenity should apply and that he should be sentenced under the lesser penalties specified for "cocaine." Because we do not agree that the statutory and guideline provisions are ambiguous, we affirm Booker's sentence.

I. The Sentencing Provisions

A. Statutory Provisions

In 21 U.S.C. Sec. 841(b), Congress set forth mandatory minimum sentences for certain offenses involving the distribution of controlled substances. Under Sec. 841(b), the mandatory minimum sentence for a given quantity of "cocaine base" is equivalent to the statutory minimum for 100 times that amount of "cocaine." Section 841 contains two tiers of statutory minima. First, Sec. 841(b)(1)(B)(iii) sets a mandatory minimum of 5 years for offenses involving "5 grams or more of a mixture or substance ... which contains cocaine base." In contrast, the 5-year minimum does not apply unless the defendant is held responsible for at least 500 grams of "a mixture or substance containing ... cocaine, its salts, optical and geometric isomers, and salts of isomers." Id. at Sec. 841(b)(1)(B)(ii)(II). Second, a 10-year mandatory minimum applies to offenses involving 50 grams or more of cocaine base or 5 kilograms or more of cocaine. 21 U.S.C. Sec. 841(b)(1)(A). Neither Sec. 841 nor any other statute defines the terms "cocaine" or "cocaine base."

B. Guideline Provisions

Under the guidelines, the base offense level for offenses involving a quantity of cocaine base is the same as the offense level for offenses involving 100 times that quantity of cocaine. For example, Booker was held accountable for 500 grams to 1.5 kilograms of cocaine base. This gave him a base offense level of 36. U.S.S.G. Sec. 2D1.1(c)(2). In comparison, level 36 is applied to offenses involving 50 kilograms but less than 150 kilograms of cocaine. Id. If Booker's offense had involved cocaine, his base offense level would have been 26. Id. at Sec. 2D1.1(c)(7).

The guidelines do not offer a definition of "cocaine" and until recently did not define "cocaine base." An amendment that became effective in November 1993 defines "cocaine base" as "crack." U.S.S.G. Sec. 2D1.1; U.S.S.G.App.C, Amendment 487. ² However, the 1990 version of the guidelines was used in this case. ³ Amendment 487 represents a substantive change to the text of the guidelines rather than a clarification to the guidelines' commentary. United States v. Camacho, 40 F.3d 349, 354 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995). Amendments that include substantive changes are not applied retroactively unless the Sentencing Commission so specifies. Id.; see also United States v. Alvarez, 914 F.2d 915, 917 n. 1 (7th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991). The Commission has not specified that Amendment 487 applies retroactively. ⁴ Thus, Amendment 487 does not apply to Booker's case, so the terms "cocaine" and "cocaine base" are not defined by either the statute or the guidelines for the purposes of this appeal.

II. Scientific Definitions of Cocaine and Cocaine Base

At sentencing, Booker and the government stipulated to the testimony of several scientists that appears in the transcript of the sentencing hearing in United States v. Davis, 864 F.Supp. 1303 (N.D.Ga.1994). The transcript was placed into the record as evidence. The scientists who testified were James Woodford, a defense witness, John Marshall Holbrook, an expert called by the court, and Joey Douglas Clarke, a scientist employed by the Drug Enforcement Agency who was called by the government. The three witnesses agreed on a number of basic points concerning the chemical properties of cocaine and cocaine base, of which we will take judicial notice. ⁵

Cocaine in its naturally occurring form is a base ⁶ with the chemical formula C sub17 H sub21 NO sub4 . ⁷ Davis Tr. at 6. Because cocaine is a base, the phrase "cocaine base," in scientific terms, is redundant. To a scientist, "cocaine" and "cocaine base" are synonymous; they both refer to a substance with the formula C sub17 H sub21 NO sub4 . Id. at 29, 111, 169. ⁸

Cocaine, however, is rarely used in its naturally occurring form, at least in the United States. Before cocaine is imported into the United States, it is generally converted into cocaine hydrochloride, more commonly known as powder cocaine. This process involves two steps. First, coca leaves are converted into coca paste "by mixing the leaves with an alkaline material (e.g., sodium bicarbonate), ⁹ an organic solvent (e.g., kerosene), and water." Id. at 11. ¹⁰ Second, the coca paste is dissolved in hydrochloric acid and water. The hydrochloric acid (an acid) combines with the cocaine (a base) to produce a salt, cocaine hydrochloride. See id. at 12. ¹¹ This salt, known as powder cocaine, is easily dissolved in water, and it may be ingested, insufflated (snorted), or injected. ¹² It is not smokable, however, because cocaine hydrochloride decomposes at approximately the same temperature at which it vaporizes; thus, smoking cocaine hydrochloride produces no "physiological or psychotropic effects" (i.e., the user will not experience a "high" because the cocaine has decomposed). Id. at 12-13. The chemical formula of cocaine hydrochloride is C sub17 H sub22 ClNO sub4 . ¹³ Davis Tr. at 44.

Cocaine hydrochloride may be converted into what is referred to as freebase cocaine or cocaine freebase. Essentially, "freebase" means that the base (cocaine) is "freed" from the hydrochloride and converted into the same chemical state it was in before it became a salt. See Davis Tr. at 17. Freebase can be manufactured in different ways. In the 1970s, freebase would generally be made by dissolving cocaine in ammonia and adding ether or another organic solvent. See id. at 14; Cocaine and Federal Sentencing Policy at 13. This process, however, is dangerous to both the producer and the user because ether is flammable. Cocaine and Federal Sentencing Policy at 13. ¹⁴ A safer process for manufacturing freebase cocaine involves dissolving cocaine hydrochloride in baking soda and water, boiling the mixture until only a solid substance is left, and allowing it to dry. Id. at 14; see also Davis Tr. at 17. The result of this latter process is commonly known as crack. Cocaine and Federal Sentencing Policy at 14. ¹⁵ Freebase cocaine has a lower melting point than cocaine hydrochloride, so it can be smoked without the active ingredient (cocaine) decomposing. Davis Tr. at 14. ¹⁶ Freebase cocaine, however, is not water soluble (does not dissolve in water), so it cannot be injected or snorted. See id. at 144-45. All forms of freebase cocaine, including crack, have the same chemical formula as cocaine: C sub17 H sub21 NO sub4 . Id. at 13.

III. Are the Sentencing Provisions Ambiguous?

The sentencing schemes in Sec. 841(b) and Sec. 2D1.1 are widely considered to establish two tiers of penalties for offenses involving cocaine: higher penalties for "crack" cocaine and lesser penalties for powder cocaine. Our task, at least in this case, would be easy if the provisions simply said "crack" and "powder." The problem is that they do not; instead, they specify "cocaine" and "cocaine base." The scientific evidence introduced by Booker shows that the terms "cocaine" and "cocaine base" refer to the same substance--a base with the chemical formula C sub17 H sub21 NO sub4 . A scientist trying to determine which sentencing provision applies to Booker would conclude that both apply because the crack cocaine that he distributed is a substance with the chemical formula C sub17 H sub21 NO sub4 . Thus, Booker argues that the sentencing provisions are ambiguous. ¹⁷

In United States v. Blanding, 53 F.3d 773 (7th Cir.1995), this court rejected the defendants' argument that Sec. 841(b) is ambiguous, stating that "Congress has defined the substance [cocaine base] ... with appropriate clarity." Id. at 776. Booker urges us to revisit Blanding in light of the aforementioned scientific evidence. The Blanding court did not have the benefit of the extensive scientific evidence presented in this case.

When presented with this same scientific evidence, the Davis court held that "[b]ecause ... the definitions [of cocaine and cocaine base] are identical, there is unquestioned ambiguity on the face of the statute." Davis, 864 F.Supp. at 1306. Thus, the court applied the rule of lenity. Id. Given the agreement among all three scientists (the defense expert, court expert, and government expert) that the terms "cocaine" and "cocaine base" refer to the same substance--a base with the chemical formula C sub17 H...