U.S. v. Edwards

• Decision Date: 11 February 2005
• Docket Number: No. 03-4234.,03-4234.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

397 F.3d 570

UNITED STATES of America, Plaintiff-Appellee, v. Carl EDWARDS, Defendant-Appellant.

No. 03-4234.

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2004.

Decided February 11, 2005.

Debra Riggs Bonamici (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Nishay K. Sanan (argued), Chicago, IL, for Defendant-Appellant.

Before ROVNER, WOOD, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

All crack is cocaine base but not all cocaine base is crack. This case presents the question of whether this distinction is meaningful for purposes of the enhanced penalties for cocaine base offenses under 21 U.S.C. § 841(b). The statute prescribes a mandatory minimum sentence of ten years for the manufacture, distribution, or possession with intent to manufacture or distribute 50 grams or more of "cocaine base." 21 U.S.C. § 841(b)(1)(A)(iii). The federal Sentencing Guidelines also call for increased penalties, in the form of heightened base offense levels, for crimes involving "cocaine base." See U.S.S.G. § 2D1.1(c). But while the Guidelines define "cocaine base" as "crack" for purposes of the higher penalties, see U.S.S.G. § 2D1.1(c), Note (D), the statute contains no such limiting definition. The question in this case is whether the mandatory minimum sentence in the statute applies, like the Guidelines, to crack offenses only.

We have addressed a variation of this question before, although in a case that arose before the Guidelines were amended to specifically define "cocaine base" as "crack" for purposes of the higher Guidelines penalties. In United States v. Booker, 70 F.3d 488, 494 (7th Cir.1995),¹ we held that because "Congress and the Sentencing Commission intended `cocaine base' to mean crack cocaine," the enhanced penalties in § 841(b) and the Guidelines "apply to crack cocaine, and the lesser penalties apply to all other forms of cocaine." We reiterated this holding in United States v. Reddrick, 90 F.3d 1276, 1282 (7th Cir.1996), and also referred to it in three subsequent cases applying the amended guideline definition which limits the applicability of the higher Guidelines penalties to offenses involving only the subset of "cocaine base" that constitutes "crack." See United States v. Earnest, 129 F.3d 906, 915-16 (7th Cir.1997); United States v. Adams, 125 F.3d 586, 591-92 (7th Cir.1997); United States v. Hall, 109 F.3d 1227, 1236 (7th Cir.1997).

A footnote in Adams led the district court in this case to conclude that Booker notwithstanding, the applicability of the statutory ten-year minimum sentence to an offense involving "cocaine base" that is not "crack" is an open question in this circuit. United States v. Edwards, 294 F.Supp.2d 954, 959-60 (N.D.Ill.2003). Looking elsewhere for guidance, the court adopted the reasoning of United States v. Barbosa, 271 F.3d 438, 467 (3d Cir.2001), in which the Third Circuit held that Congress intended the mandatory minimum sentence to apply to offenses involving any form of cocaine base, whether crack or not. Edwards, 294 F.Supp.2d at 960. The district court found that the controlled substance in this case was not "crack" but was "cocaine base" and on that basis imposed the mandatory ten-year sentence. Id.

We reverse. Booker held that for purposes of the enhanced penalties in the Guidelines and the statutes "cocaine base" means "crack cocaine." Booker, 70 F.3d at 489-90, 494. That holding controls here, and we decline to revisit it. We note a substantial divergence among the circuits on this issue. Some circuits, like this one, have equated the statutory term "cocaine base" to "crack." Some have held that any form of "cocaine base" qualifies for the mandatory minimum sentence. Others have adopted a hybrid approach that includes any smokable form of cocaine base within the statutory term — including, but apparently not limited to, crack. See Part II, infra.

I. Background

Carl Edwards was indicted on two counts of possession with intent to distribute more than 50 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). Edwards offered pleas of guilty while reserving his right to contest the nature of the substances involved; he admitted they contained cocaine but denied it was either cocaine base or crack. The district court held that Edwards' pleas were knowing and voluntary but deferred accepting them to avoid triggering Edwards' immediate detention and to await determination of the nature of the substance at an evidentiary hearing. Edwards, 294 F.Supp.2d at 955-56.

At the subsequent hearing the government's expert, Dr. James DeFrancesco, testified that on the basis of laboratory testing, the substances in Edwards' possession were cocaine base. He opined further that the substances were crack cocaine, basing this conclusion not on scientific tests or expert examination but on the definition in the Sentencing Guidelines, which reads:

"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). Because DeFrancesco relied exclusively on the legal definition of "cocaine base" rather than scientific evidence, the district court rejected his conclusion that the substances Edwards possessed were crack. Id. at 957.

Edwards' expert, Dr. Michael Evans, agreed with Dr. DeFrancesco that the substances were cocaine base in the chemical sense but testified that they did not constitute crack. His laboratory tests revealed none of the telltale signs of crack; among other things, the substances did not exhibit the color or form that results from the process of mixing cocaine hydrochloride (powder cocaine) with sodium bicarbonate to produce crack. The district court accepted Dr. Evans' conclusions and found by a preponderance of the evidence that the substances in Edwards' possession were a noncrack form of cocaine base.² Id. at 958.

To determine Edwards' sentence, the court turned first to § 2D1.1(c) of the Guidelines, the Drug Quantity Table, which specifies that the base level for an offense involving a quantity of cocaine base is the same as for an offense involving 100 times that quantity of cocaine. Id.; see also Booker, 70 F.3d at 489. Pursuant to the Guidelines definition quoted above, however, only crack is subjected to the heightened penalties; forms of cocaine base other than crack are sentenced like other forms of cocaine, most notably, powder cocaine. Under the Guidelines an offense involving just over 100 grams of cocaine yields a base offense level of 16, which in light of Edwards' criminal history results in a sentencing range of 24-30 months.

The statutory minimum sentence for "cocaine base," however, is ten years, 21 U.S.C. § 841(b)(1)(A)(iii), and it takes precedence. United States v. Schaefer, 107 F.3d 1280, 1285 (7th Cir.1997); U.S.S.G. § 5G1.1(b). Relying on the Third Circuit's decision in Barbosa, the district court concluded that the statutory mandatory minimum applies to all forms of cocaine base, not just crack, and imposed two concurrent ten-year terms of imprisonment.

II. Discussion

Congress enacted the mandatory minimum sentence for cocaine base in 1986 as part of the Anti-Drug Abuse Act. See Pub.L. 99-570, § 1002(2) (Oct. 27, 1986). The statute does not define "cocaine base." Prior to 1993, § 2D1.1(c) of the Guidelines, like the statute, also contained no definition of "cocaine base." In 1993, however, the Sentencing Commission amended § 2D1.1(c) to define cocaine base as "crack" for Guidelines sentencing purposes. See 58 Fed.Reg. 27148, 27156 (May 6, 1993). The definition took effect November 1, 1993. Booker was decided after the new definition took effect, but Booker's conviction related to events predating the amendment's effective date, so the court applied the earlier version of the Guidelines. Booker, 70 F.3d at 489-90 n. 3.

The defendant in Booker argued that the sentencing provisions in § 841(b) and the Guidelines differentiating between "cocaine" and "cocaine base" were ambiguous (and therefore the rule of lenity should apply) because in chemical terms "cocaine" and "cocaine base" are identical. Booker, 70 F.3d at 489. Cocaine in its natural state is a base; "cocaine" and "cocaine base" thus have the same chemical formula, C₁₇H₂₁NO₄. Id. at 490. We noted in Booker that most cocaine imported into this country is first converted into cocaine hydrochloride (cocaine salt), having the chemical formula C₁₇H₂₂ClNO₄, and commonly referred to as powder cocaine. Id. at 490-91.

Powder cocaine can be converted back into base cocaine by a process that "frees" the base from the hydrochloride. Id. at 491. Cocaine "freebase," popular in the 1970s, is produced by mixing cocaine hydrochloride with ammonia and ether or another organic solvent. Id."Crack" is the street name for another form of freebase cocaine, produced by mixing cocaine hydrochloride with baking soda and water, boiling the mixture until only a solid substance is left, and allowing it to dry, resulting in a rocklike substance. Id. Smokable and therefore more potent than ordinary powder cocaine, crack rivals freebase cocaine in terms of its potency while avoiding the hazards of freebasing, which requires the use of flammable ether. Id. Freed of the hydrochloride, the cocaine returns to its base form — whether in the physical form of crack or otherwise — and is again chemically identical to "cocaine." Thus, the question of statutory ambiguity arose: although "cocaine base" and "cocaine" are scientifically synonymous, § 841(b) assigns enhanced penalties to offenses involving 50 grams or more of "cocaine base" but requires 5 kilograms or more (a 100:1 ratio) of "cocaine" or "its salts" to trigger the enhanced penalties. Id.

We held in Booker that despite the chemical identity...