U.S. v. Palacio

• Decision Date: 31 August 1993
• Docket Number: No. 1587,D,1587
• Citation: 4 F.3d 150
• Parties: UNITED STATES of America, Appellee, v. Joaquin PALACIO, also known as Ruben Zapata, Defendant-Appellant. ocket 92-1618.
• Court: U.S. Court of Appeals — Second Circuit

Page 150

4 F.3d 150

UNITED STATES of America, Appellee, v. Joaquin PALACIO, also known as Ruben Zapata, Defendant-Appellant.

No. 1587, Docket 92-1618.

United States Court of Appeals, Second Circuit.

Argued May 26, 1993.

Decided Aug. 31, 1993.

John Apicella, Brooklyn, NY, for defendant-appellant.

Judith Lieb, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty., Peter A. Norling, Asst. U.S. Atty., on the brief), for appellee.

Before: NEWMAN, Chief Judge, FEINBERG, Circuit Judge, and KELLEHER, ^* District Judge.

JON O. NEWMAN, Chief Judge:

Congress has specified more severe penalties for offenses involving cocaine base than for offenses involving cocaine hydrochloride. See 21 U.S.C. Sec. 841(b)(1)(A)(iii), (B)(ii)(II) (1988). Though the purpose of the higher penalty is to deter traffic in crack, a common form of cocaine base, this Circuit has ruled that the higher penalties for cocaine base apply to any substance within the chemical definition of cocaine base, whether or not it is crack. See United States v. Jackson, 968 F.2d 158 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992). This appeal presents the narrow issue whether the higher sentence for cocaine base is unconstitutional when imposed for an offense involving a cocaine base, other than crack, that is acknowledged to be a precursor to its conversion into cocaine hydrochloride. Additionally, this appeal requires us to consider the effect of a proposed amendment to the Sentencing Guidelines commentary defining the term "cocaine base" in the Guidelines more narrowly than we defined the statutory term. The issues arise on an appeal by Joaquin Palacio from the September 30, 1992, judgment of the District Court for the Eastern District of New York (Reena Raggi, Judge) sentencing him to ten years' imprisonment for drug offenses. We affirm.

Background

On November 6, 1991, United States Customs agents arrested Palacio after he attempted, using false identification, to pick up twelve flowerpots that had been flown into John F. Kennedy International Airport from Colombia. The flowerpots contained 2.9 kilograms of cocaine base dissolved into the plastic. A jury found Palacio guilty of the conspiracy and substantive offenses of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. Secs. 841, 846 (1988).

The primary issue at sentencing appeared to be whether Palacio could constitutionally be sentenced under the guidelines applicable to cocaine base, as opposed to the less severe guidelines applicable to cocaine hydrochloride. This issue arose because, as the Government conceded, the cocaine base embedded in the flowerpots was likely to be converted into cocaine hydrochloride before sale. However, Judge Raggi concluded that a decision on the constitutional issue was unnecessary because, whether Palacio was sentenced for cocaine base or cocaine hydrochloride, he would receive a sentence of ten years. She reached this conclusion by first assuming that the controlled substance was cocaine base.

Starting with the base offense level of 38 for 2.9 kilograms of cocaine base, see U.S.S.G. Sec. 2D1.1(c)(3), she added two levels for obstruction of justice, id. Sec. 3C1.1, and subtracted four levels for minimal role, id. Sec. 3B1.2(a), to reach an adjusted offense level of 36. She then departed downward from the sentencing range of 188 to 235 months (based on a criminal history category of I) and imposed a sentence of ten years, the statutory mandatory minimum for a conviction with this quantity of cocaine base. See 21 U.S.C. Sec. 841(b)(1)(A)(iii) (1988). Judge Raggi offered two related reasons for the departure: first, Palacio's role was minimal to an extent not contemplated by the Commission, and second, the Commission, in setting the quantity tables, did not consider the difference between cocaine base in the form of crack and cocaine base that is a precursor to cocaine hydrochloride.

Alternatively, Judge Raggi ruled that even if she were to sentence Palacio for cocaine hydrochloride, she would still impose a sentence of ten years. She said:

I sentence the defendant to ... 120 months. I note that if I were to have treated this case as a [cocaine] hydrochloride case, that [120-month sentence] would have been within the sentencing range that I could have sentenced the defendant to and that would have been the sentence, so the sentence would not have been different had I been able to sentence at a hydrochloride range.

As we discuss below, this alternative calculation was incorrect.

Discussion

I. Need we resolve Palacio's constitutional claims?

Where a sentencing judge indicates that the same sentence would have been imposed under either of two arguably applicable guideline ranges, the dispute about which range is applicable need not be resolved either by the trial court or on appeal. See United States v. Bermingham, 855 F.2d 925, 931 (2d Cir.1988). As we have noted, the record clearly indicates that Judge Raggi intended to avoid the necessity of resolving Palacio's contention that he should be sentenced as if the flowerpots contained cocaine hydrochloride. However, in fact Palacio's guideline range sentence would not have been 120 months if the 2.9 kilograms for which he was sentenced had been characterized as cocaine hydrochloride, instead of cocaine base. In that case, the base offense level would have been 28, see U.S.S.G. Sec. 2D1.1(c)(8), and after adjusting upward for Palacio's obstruction of justice and downward for his minimal role, the adjusted offense level would have been 26. The applicable sentencing range for this adjusted offense level is 63 to 78 months.

The Government contends that Judge Raggi's alternative calculation for cocaine hydrochloride arrived at an adjusted offense level of 30 and a sentencing range of 97 to 121 months. According to the Government, Judge Raggi gave Palacio the four-level minimal role reduction only when assuming that he would be sentenced for cocaine base and withheld this reduction when assuming alternatively that he would be sentenced for cocaine hydrochloride. In the Government's view, the Judge added two levels for obstruction of justice to the base offense level of 28 for cocaine hydrochloride and arrived at an adjusted offense level of 30.

We need not decide whether such an inconsistent treatment of a minimal role adjustment would have been proper because Judge Raggi did not do what the Government suggests. Instead, she simply made an inadvertent mistake by starting her alternative calculation on the assumption that the base offense level for 2.9 kilograms of cocaine hydrochloride is 32:

I do note that if the quantity in this case, which is just under three kilos ... [were cocaine h]ydrochloride, we would be at level 32, which would be 121 to 151 months, but there would be then the two point enhancement for obstruction, the possible four point diminution for role in the offense. It would still bring us to a guideline level that would be in the 10 year range.

(emphasis added). In fact, as we have noted, the base offense level for 2.9 kilograms of cocaine hydrochloride is not 32, but 28. See U.S.S.G. Sec. 2D1.1(c)(8). Because Judge Raggi erred in her alternative guideline calculation and because under a correct calculation, she could not have sentenced Palacio to the same 120 months he received when sentenced for cocaine base, we must resolve the dispute as to whether Palacio can be constitutionally sentenced under the statutory provisions applicable to cocaine base.

II. The constitutional claims

Palacio argues that since the substance he possessed was a precursor to cocaine hydrochloride, sentencing him to the more severe penalty applicable to cocaine base violates his right both to due process and to equal protection. In United States v. Jackson, 968 F.2d at 163-64, we held that the enhanced penalty provisions of section 841(b) and section 2D1.1 of the Guidelines were not unconstitutionally vague for lack of a definition of the term "cocaine base." Jackson was arrested with a substance that chemists testified was cocaine base but that might not have been pure enough to use as crack. We interpreted the statutory term "cocaine base" according to its scientific definition, that is, a substance that produces a salt when combined with an acid. Id. at 161. We expressly declined to infer that Congress intended to limit the term to a common form of cocaine base--namely, crack. Id. at 162-63.

Palacio's due process argument contends that in his case there is no rational basis for enhancing his sentence just because the substance dissolved into the plastic flowerpots was in the form of a base, as defined in the scientific community, since the Government conceded that the base, once extracted, was likely to be transformed into cocaine hydrochloride before it was sold in the drug trade. Because the enhanced penalty provisions were intended to increase the punishment of drug offenders who deal in highly addictive crack, Palacio continues, those provisions should not apply where there is no evidence that the base will be distributed and consumed as crack. We disagree.

When faced with a due process challenge, we must "determine whether there is 'any state of facts either known or which could reasonably be assumed' to support the statute." United States v. Murphy, 979 F.2d 287, 290 (2d Cir.1992) (quoting United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938)). The choice by Congress to enhance the penalties for those who deal in any form of cocaine base, regardless of its ultimate use, is rational. By defining cocaine base according to its molecular structure, Congress has chosen a scientifically precise method of determining which substances are subject to enhanced penalties and has avoided individualized inquiry into the ultimate use of the substance. Such an inquiry would be difficult because, as Palacio concedes, the...