U.S. v. Clary, 94-1422

• Decision Date: 20 October 1994
• Docket Number: No. 94-1422,94-1422
• Citation: 34 F.3d 709
• Parties: UNITED STATES of America, Appellant, v. Edward James CLARY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 709

34 F.3d 709

63 USLW 2199

UNITED STATES of America, Appellant, v. Edward James CLARY, Appellee.

No. 94-1422.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1994.

Decided Sept. 12, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 20, 1994.

Daniel E. Meuleman, Asst. U.S. Atty., St. Louis, MO (Richard L. Poehling, on the brief), for appellant.

Andrea L. Smith, Asst. Federal Public Defender, East St. Louis, IL, for appellee.

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, HENLEY and JOHN R. GIBSON, Senior Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

The United States appeals from the sentence imposed upon Edward James Clary for possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(b)(1)(A)(iii). Clary entered a guilty plea to the charge which called for a ten-year mandatory minimum sentence. After conducting a four-day hearing, the district court sentenced Clary to four years. The court held that the 100 to 1 ratio for crack cocaine to powder cocaine was disproportionate and in violation of the Equal Protection Clause both generally and as applied, and that the selective prosecution of crack cases on the basis of race was constitutionally impermissible as applied to Clary. The United States essentially argues that these issues have been repeatedly decided and there was no equal protection violation or selective prosecution of Clary. We reverse and remand for resentencing in accord with the applicable statutes and guidelines.

After Clary's guilty plea but before sentencing, he filed a motion arguing that the ten-year mandatory minimum sentence contained in the crack cocaine statute, 21 U.S.C. Sec. 841(b)(A)(iii), and United States Sentencing Guideline section 2D1.1, violated his Equal Protection rights guaranteed by the Fifth Amendment. ¹ Clary presented eleven witnesses who testified about the profound impact of the crack statute and its ten year mandatory minimum sentence on African Americans. The district court determined that in spite of earlier decisions from this court stating that the differentiation between the treatment of powder cocaine and crack cocaine was constitutional and did not violate the Equal Protection Clause, we invited arguments presenting new facts and legal analysis in United States v. Marshall, 998 F.2d 634, 635 n. 2 (8th Cir.1993).

The district court began its factual analysis by examining the role that racism has played in criminal punishment in this country since the late seventeenth century. United States v. Clary, 846 F.Supp. 768, 774-782 (E.D.Mo.1994). The district court touched on such recent events as the turmoil of the 1960's and the "cataclysmic economic change" in the 1980's. Id. at 777-78. The court also examined unemployment levels, which the court concluded impacted African Americans more than the general population. Id. at 777. According to the court, African Americans' anger and frustration led to increased drug traffic and associated violence. Id. at 777-78.

The district court also discussed the unconscious predisposition of legislators, and reasoned that although overt racial animus may not have led to Congress' enactment of the crack statute, its failure to account for a substantial and foreseeable disparate impact would violate the spirit and letter of equal protection. Id. at 782. Accordingly, it concluded that the statute should be reviewed under strict scrutiny and the rules announced in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). The court listed the seven factors outlined by Arlington as circumstantial evidence of a racially-discriminatory legislative purpose. The factors are: (1) adverse racial impact, (2) historical background, (3) specific sequence of events leading up to the decision, (4) departure from normal procedure sequence, (5) substantive departure from routine decision, (6) contemporary statements made by decisionmakers, and (7) the inevitability or foreseeability of the consequence of the law. 846 F.Supp. at 783.

The court outlined the events leading up to passage of the crack statute. The court cited several news articles submitted by members of Congress for publication in the Congressional Record which portrayed crack dealers as unemployed, gang-affiliated, gun-toting, young black males. Id. at 783-84. Legislators, the court reasoned, used these media accounts as informational support for the statute. The district court also pointed to perceived procedural irregularities surrounding Congress' approval of the crack sentencing provisions. Id. at 784-85. For instance, few hearings were held in the House on the enhanced penalties for crack. Id. at 785. While many Senators called for a more measured response, the Senate committee conducted a single morning hearing. Id. at 784-85. Finally, although the penalties were originally set at 50 to 1, they were arbitrarily doubled. Id. at 784.

The district court also observed that 98.2 percent of defendants convicted of crack cocaine charges in the Eastern District of Missouri between the years 1988 and 1992 were African American. Id. at 786. Nationally, 92.6 percent of those convicted of crack cocaine charges were African American, as opposed to 4.7 percent who were white. 786. With respect to powder cocaine, the percentages were largely reversed. Id. The court found that this statistical evidence demonstrated both the disparate impact of the 100 to 1 ratio and the probability that "the subliminal influence of unconscious racism ha[d] permeated federal prosecution throughout the nation." Id. at 791.

While the government directed the court to evidence that Congress considered crack to be more dangerous because of its potency, addictiveness, affordability and prevalence, the court found evidence in the record contradicting many of the legislators' beliefs. Id. at 781-92. In particular, the court questioned Congress' conclusion that crack was 100 times more potent or dangerous than powder cocaine, referring to testimony that there is no reliable medical evidence that crack cocaine is more addictive than powder cocaine. Id. In light of these factors, the court found the punishment of crack at 100 times greater than powder cocaine to be a "frenzied, irrational response." Id. at 792. The court repeatedly stressed that "cocaine is cocaine." Id. at 793.

The district court held the portions of 21 U.S.C. section 841 mandating punishment 100 times greater for crack than powder cocaine to be constitutionally invalid generally and as applied in this case.

We believe that this case could well be decided on the basis of past decisions by this court. See United States v. Maxwell, 25 F.3d 1389, 1396-97 (8th Cir.1994); United States v. Simms, 18 F.3d 588, 595 (8th Cir.1994); United States v. Parris, 17 F.3d 227, 230 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1662, 128 L.Ed.2d 378 (1994); United States v. Johnson, 12 F.3d 760, 763-64 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2689, 129 L.Ed.2d 821 (1994); United States v. Echols, 2 F.3d 849, 850 (8th Cir.1993); United States v. Womack, 985 F.2d 395, 400 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 276, 126 L.Ed.2d 227 (1993); United States v. Williams, 982 F.2d 1209, 1213 (8th Cir.1992); United States v. Lattimore, 974 F.2d 971, 974-76 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993); United States v. Willis, 967 F.2d 1220, 1225 (8th Cir.1992); United States v. Simmons, 964 F.2d 763, 767 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992); United States v. Hechavarria, 960 F.2d 736, 738 (8th Cir.1992) (per curiam); United States v. McDile, 946 F.2d 1330, 1331 (8th Cir.1991); United States v. Johnson, 944 F.2d 396, 409 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 646, 116 L.Ed.2d 663 (1991); United States v. House, 939 F.2d 659, 664 (8th Cir.1991); United States v. Winfrey, 900 F.2d 1225, 1226-27 (8th Cir.1990); United States v. Reed, 897 F.2d 351, 352-53 (8th Cir.1990) (per curiam); United States v. Buckner, 894 F.2d 975, 978-80 (8th Cir.1990).

In Lattimore, Chief Judge Arnold carefully examined earlier authority holding that Congress clearly had rational motives for creating the distinction between crack and powder cocaine. 974 F.2d at 974-75. Among the reasons were "the potency of the drug, the ease with which drug dealers can carry and conceal it, the highly addictive nature of the drug, and the violence which often accompanies trade in it." Id. at 975. Lattimore squarely rejects the argument that crack cocaine sentences disparately impact on African Americans. Id. Citing Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), we observed that even if a neutral law has a disproportionate adverse impact on a racial minority, it is unconstitutional only if that effect can be traced to a discriminatory purpose. Lattimore, 974 F.2d at 975. Discriminatory purpose "implies that the decisionmaker, in this case [Congress], selected or reaffirmed a particular course of action at least in part 'because of' not merely 'in spite of,' its adverse effects upon an identifiable group." Id. (quoting Feeney, 442 U.S. at 279, 99 S.Ct. at 2296). We concluded that there was no evidence that Congress or the Sentencing Commission had a racially discriminatory motive when it crafted the Guidelines with extended sentences for crack cocaine felonies. Lattimore, 974 F.2d at 975.

Lattimore also referred to Buckner, 894 F.2d 975, a case dealing with a substantive due process challenge to the 100 to 1 ratio. In Buckner, we held that requiring more severe penalties for crack than cocaine powder was not arbitrary or irrational. Id. at 980. We referred to the Senate hearing on crack, citing statements by five Senators on the dangers of crack cocaine. Id. at 978-79 n. 9 (citing "Crack"...