U.S. v. Canales

• Decision Date: 05 August 1996
• Docket Number: D,No. 1851,1851
• Citation: 91 F.3d 363
• Parties: UNITED STATES of America, Appellee, v. Reynaldo CANALES, Defendant-Appellant. ocket 95-1673.
• Court: U.S. Court of Appeals — Second Circuit

Page 363

91 F.3d 363

UNITED STATES of America, Appellee, v. Reynaldo CANALES, Defendant-Appellant.

No. 1851, Docket 95-1673.

United States Court of Appeals Second Circuit.

Argued June 26, 1996.

Decided Aug. 5, 1996.

Jeffrey A. Meyer, Assistant United States Attorney, New Haven, CT (Christopher F. Droney, United States Attorney for the District of Connecticut, John W. McReynolds, United States Department of Justice, on the brief), for Appellee United States of America.

Sarah A. Chambers, Assistant Federal Public Defender, New Haven, CT, for Defendant-Appellant Reynaldo Canales.

Before MINER, JACOBS and PARKER, Circuit Judges.

JACOBS, Circuit Judge:

Defendant Reynaldo Canales pled guilty to one count of conspiring to possess with intent to distribute and of conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. On November 9, 1995, the district court sentenced Canales to 60 months' imprisonment pursuant to U.S.S.G. § 2D1.1(a)(3) & (c)--the relevant provisions for offenses involving "crack" cocaine. Canales appeals his sentence on the grounds (i) that the rule of lenity required the district court to sentence him under the Guidelines section applicable to non-crack cocaine, because the Guidelines' definition of crack cocaine is impermissibly vague; and (ii) that the district court mistakenly believed that it lacked authority to depart downward on the basis of the sentencing disparity between offenses involving crack cocaine and those involving other forms of cocaine and cocaine base.

Because the Guidelines define crack cocaine with sufficient clarity and because Canales admitted to possessing crack cocaine, we reject any rule of lenity claim that Canales might have had. We find no reason to reconsider our well-established holding that a district court lacks statutory authority to depart downward by reason of a supposed "disparity" between the required penalties for offenses involving crack cocaine and for those involving non-crack cocaine. We therefore hold that the district court properly refused to depart, and affirm Canales's sentence.

BACKGROUND

On at least four occasions between September 29 and November 21, 1994, Canales sold a total of 63.7 grams of crack cocaine and 6.4 grams of powder cocaine to an undercover agent in Bridgeport, Connecticut. Canales was arrested on November 21, and a grand jury returned a six-count indictment against him. On February 28, 1995, Canales pled guilty to one count of distributing and conspiring to possess with intent to distribute "cocaine and cocaine base," in violation of 21 U.S.C. § 846.

After Canales's guilty plea, the United States Probation Department prepared a presentence report ("PSR") which was disclosed to the prosecution and the defense several weeks prior to the initial sentencing date. The PSR states that Canales sold crack cocaine to an undercover agent on four separate occasions, and details each of the four transactions. The PSR also states that, during one of his conversations with the undercover agent, Canales offered to cook powder cocaine to convert it to crack cocaine. The government also submitted to the court (along with the PSR) reports from a laboratory of the Drug Enforcement Administration ("DEA") that conclude that the "white/yellow rock substance" sold by Canales contained "cocaine base." Local Rule 9(a) of the Criminal Local Rules of the District of Connecticut precludes a defendant from raising objections to facts stated in a PSR unless objections thereto are filed within 14 days of disclosure. Canales filed no objections to the PSR.

Canales submitted a sentencing memorandum to the district court in which he contended (as he contends here) that the rule of lenity required the court to sentence him as if he dealt in a form of cocaine other than crack. As an addendum to that memorandum, Canales included a 259-page transcript of a proceeding in United States v. Davis, 864 F.Supp. 1303 (N.D.Ga.1994). In that proceeding, four experts testified that crack and non-crack forms of cocaine base are chemically indistinguishable, and that there is no consensus among cocaine experts as to the precise scientific definition of crack.

On November 9, 1995, a sentencing hearing was held before Judge Daly. When prompted by the court, Canales's counsel interposed no objection to the factual findings in the PSR. Before calculating Canales's sentence, the court rejected Canales's contention that the rule of lenity required sentencing under the applicable Guideline provision for non-crack cocaine. The court held that the Guidelines' definition of crack cocaine, set forth at U.S.S.G. § 2D1.1(c) note (D), was sufficiently precise, and that the rule of lenity was therefore inapplicable. The court then refused to depart from the Guidelines range because "[t]he sentencing disparity between cocaine base and cocaine does not justify a downward departure" under the law of this Circuit.

On the conviction for conspiring to distribute 63.7 grams of "cocaine base," as that term is defined by U.S.S.G. § 2D1.1, and 6.4 grams of cocaine powder, Canales's base offense level was 32. The district court reduced the base offense level by three levels for acceptance of responsibility under U.S.S.G. § 3E1.1, and by two levels more for meeting the criteria set forth at U.S.S.G. § 5C1.2. The court also granted Canales's request for a two level downward departure based upon his efforts at rehabilitation, yielding a total offense level of 25. Based on a criminal history category of I, the Guideline range was from 57 to 71 months' imprisonment. ¹ The district court sentenced Canales to 60 months' imprisonment, to be followed by a five-year term of supervised release. On November 13, 1995, Canales filed a timely notice of appeal.

DISCUSSION

A. Lenity.

The Guidelines impose more severe penalties for offenses involving the "crack" form of cocaine base than for offenses involving cocaine. U.S.S.G. § 2D1.1(c). A body of judicial literature deplores that distinction. See, e.g., United States v. Anderson, 82 F.3d 436, 445-450 (D.C.Cir.1996) (Wald, J., dissenting) (criticizing higher penalties for crack); United States v. Then, 56 F.3d 464, 466-69 (2d Cir.1995) (Calabresi, J., concurring) (same); United States v. Dumas, 64 F.3d 1427, 1432 (9th Cir.1995) (Boochever, J., concurring) (calling higher penalties "unjustified" and "arbitrary"), cert. denied, --- U.S. ----, 116 S.Ct. 1341, 134 L.Ed.2d 490 (1996); United States v. Willis, 967 F.2d 1220, 1226-27 (8th Cir.1992) (Heaney and Lay, JJ., concurring) (asserting higher penalties have detrimental effect on minorities). Yet every challenge to the sentencing provisions that enforce the "100-to-1" penalty ratio ² ultimately has been rejected. See, e.g., Anderson, 82 F.3d at 440-41 (subsequent report by Sentencing Commission to Congress gave district court no power to depart); Then, 56 F.3d at 466 (rejecting equal protection claim); United States v. Moore, 54 F.3d 92, 96-99 (2d Cir.1995) (same), cert. denied, --- U.S. ----, 116 S.Ct. 793, 133 L.Ed.2d 742 (1996); United States v. Stevens, 19 F.3d 93, 97 (2d Cir.1994) ("[W]e join six other circuits that have similarly held that the Guidelines' 100 to 1 ratio ... does not violate equal protection principles."); Willis, 967 F.2d at 1225 (rejecting equal protection claim).

Guideline section 2D1.1(c) is the operative section for offenses involving "cocaine base" and "cocaine." The Guidelines define "cocaine base" in a note to that provision:

"Cocaine base," for the purposes of this guideline, means "crack." "Crack" 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.

U.S.S.G. § 2D1.1(c) note (D). Section 2D1.1 therefore differentiates between crack cocaine and all other forms of cocaine. The note was adopted as an amendment to the Guidelines that became effective in November 1993. The "express purpose of the 1993 amendment was to reject the interpretation of cases such as United States v. Jackson, which had ruled that cocaine base included more than crack." United States v. Montoya, 87 F.3d 621, 623 (2d Cir.1996) (per curiam) (emphasis added and citation omitted). In drafting the current definition of "cocaine base," the Sentencing Commission explained that "[u]nder this amendment, forms of cocaine base other than crack (e.g., coca paste, an intermediate step in the processing of coca leaves into cocaine hydrochloride, scientifically is a base form of cocaine, but it is not crack) will be treated as cocaine." U.S.S.G. Appendix C, Amendment 487 (effective Nov. 1, 1993). It is thus clear that "cocaine base," as that term is used in § 2D1.1(c), refers only to crack.

On appeal, Canales contends that the Guidelines' use of the term "crack" is ambiguous. Canales's argument is predicated on the assertion that there is no difference between the chemical composition of crack and of other forms of non-crack base cocaine. To prove that assertion, Canales relies on the testimony of four cocaine experts adduced in Davis, 864 F.Supp. at 1304. According to that testimony, there is no consensus as to what constitutes "crack" in the scientific community. A chemist can only say whether a substance contains cocaine base (i.e., C17-H21-NO4), or cocaine hydrochloride (i.e., cocaine powder, or C17-H21-NO4-HC1 ). To be sure, crack cocaine is one form of cocaine base. But Canales argues that because there is no scientific distinction between crack and non-crack cocaine base, the Guidelines' definition of crack "lacks any scientific meaning" and is hence facially ambiguous, mandating application of the rule of lenity.

Canales called no witnesses and introduced no exhibits at the sentencing hearing to demonstrate the supposed differences between crack and other forms of cocaine base. The experts who testified in Davis were unavailable for questioning by the...