U.S. v. Pickett

• Decision Date: 01 August 1991
• Docket Number: No. 90-3594,90-3594
• Citation: 941 F.2d 411
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith PICKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 411

941 F.2d 411

UNITED STATES of America, Plaintiff-Appellee, v. Keith PICKETT, Defendant-Appellant.

No. 90-3594.

United States Court of Appeals, Sixth Circuit.

Argued March 15, 1991.

Decided Aug. 1, 1991.

Ronald B. Bakeman (argued), Asst. U.S. Atty., Office of U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Gerald S. Gold (argued), John S. Pyle, Gold, Rotatori, Schwartz & Gibbons, Cleveland, Ohio, for defendant-appellant.

Before KRUPANSKY and BOGGS, Circuit Judges, and WOODS, District Judge. ^*

BOGGS, Circuit Judge.

Keith Pickett appeals from his conviction and sentence for conspiracy to distribute cocaine base ("crack"), in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1). For the following reasons, we affirm his conviction and sentence.

I

In early July 1989, Pickett was arrested, along with other conspirators, by police from Cleveland, Ohio. He was subsequently charged in Ohio state court with violating Ohio Revised Code § 2925.03, trafficking in controlled substances, and was freed shortly thereafter from the Cuyahoga County jail on a $60,000 bond. Pickett was indicted on federal charges on September 21, 1989. It was subsequently necessary to issue a federal arrest warrant. Pickett was arrested on the federal charges on January 3, 1990, and pled guilty in accordance with Rule 11(e), Fed.R.Crim.P., on April 3. This plea was tendered as part of a plea bargain in which two other counts in the indictment would be dropped and Pickett would receive a 240-month sentence. This sentence was within the 235 to 293 month range prescribed by the Guidelines for his offense, taking the amount of crack involved into account in establishing the Offense Level. The court accepted the guilty plea and bound Pickett over for sentencing.

At Pickett's sentencing hearing, he argued that the Sentencing Guidelines rule that illegal possession of 1 gram of crack is the equivalent for sentencing to 100 grams of cocaine powder ("cocaine") is unconstitutional. A chemist, Donald Nittskoff, testified that cocaine and crack affect the human nervous system in similar ways. Nittskoff testified that the chemical and psychological effect of both crack and cocaine was dependent upon the purity of the drug, not the form in which they were ingested. He testified that inhaled cocaine smoke (the method of ingesting crack) would reach the brain in ten seconds, while snorted cocaine through the nose took a minute to reach the brain, and that the chemical effect wore off more quickly for inhaled cocaine smoke. However, he testified that this difference did not produce a major difference in addiction or psychological dependency. He testified that the concentration and amount of the drug ingested had much more to do with addiction and psychological dependency. On cross-examination, Nittskoff agreed with the government that other chemists had different theories regarding the different effects of cocaine and crack. Those theories hold that crack smoke reaches the brain with a speed that creates a stronger psychological demand to repeat drug use than does snorted cocaine. The government quoted from a book by Dr. Richard Seferstein, who wrote that "[t]he desire to return to euphoric feeling is so intense that crack users quickly develop a habit for the drug that is almost impossible to overcome."

The district court rejected defendant's constitutional objection to the 100:1 ratio. Pickett's timely appeal followed.

II

A

We must first address some jurisdictional questions. Pickett raises five issues on appeal, three of them regarding his sentence and two regarding his conviction. ¹ The government contends that we are without jurisdiction to hear any of them because 18 U.S.C. § 3742 prevents our hearing Pickett's appeal of his sentence, Pickett did not raise his arguments before the district court, and did not reserve his right to review adverse determinations of certain pre-trial motions, as required by Rule 11(a)(2), Fed.R.Crim.P. We hold that only the Rule 11(a)(2) argument has any merit, and that it only prevents us from reaching the merits of Pickett's appeal from his conviction.

B

We turn first to the government's § 3742 argument. Pickett's notice of appeal was filed pursuant to Rule 3, Fed.R.App.P., ² which governs the filing of notices of appeal for appeals permitted by law as of right. Pickett's notice stated that he was appealing from the district court's final judgment and sentence promulgated on June 26, 1990. Appeals from criminal sentences are taken as of right pursuant to 18 U.S.C. § 3742. 18 U.S.C. § 3742(c)(1) provides that a plea agreement that includes a specific sentence in accord with Rule 11(e)(1)(C), Fed.R.Crim.P., may not be appealed by a defendant "under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement." As Pickett received the 240-month sentence that he agreed to, the government contends that he may not appeal from that sentence.

This contention is wholly without merit. Section 3742(c) refers to prerequisites to filings of appeal contained in § 3742(a). 18 U.S.C. § 3742(a) reads as follows:

A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence--(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

Clearly none of Pickett's three challenges fall under paragraphs (3) or (4) of subsection (a). Two of Pickett's challenges regard the constitutionality of the 100:1 ratio used by the Guidelines to sentence illegal possession of crack. These issues clearly constitute an appeal under paragraph (1), a sentence imposed in violation of law. § 3742(c) does not bar challenges under paragraph (1) of subsection (a). United States v. Newsome, 894 F.2d 852 (6th Cir.1990). The other argument that the Sentencing Guidelines were misapplied is clearly an issue arising under paragraph (2), and hence is also not barred by § 3742(c). United States v. Smith, 918 F.2d 664, 669 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1088, 112 L.Ed.2d 1192 (1991) (appeal from a specific 120-month sentence permitted under § 3742(a)(1) or (a)(2)). We therefore are permitted to reach the merits of Pickett's appeal from his sentence.

C

The government's jurisdictional objections to Pickett's appeal of his conviction are a different matter. The government first contends that we cannot hear Pickett's arguments in support of his appeal of his conviction because they were not raised before the district court. The government notes that our practice is not to consider an issue on appeal that was not raised by the appellant before the district court. The government asks without elaboration that we follow this practice here.

The government's position does not fully represent our practice. We have refused to follow this practice in " 'exceptional cases or particular circumstances' or when the rule would produce 'a plain miscarriage of justice.' " Pinney Dock and Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988), quoting Hormel v. Helvering, 312 U.S. 552, 557, 558, 61 S.Ct. 719, 721, 722, 85 L.Ed. 1037 (1941). See Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). We have held that we possess discretion to determine whether a case fits within any of the narrow exceptions to the general rule. Pinney Dock, 838 F.2d at 1461. There is thus no jurisdictional bar to our reaching the merits of Pickett's appeal if we find the facts of this case fit within one of the narrow exceptions.

We find that Pickett's appeal fits into one of those exceptions. We held in Pinney Dock that we will address issues not raised below "to the extent the issue is presented with sufficient clarity and completeness." Pinney Dock, 838 F.2d at 1461. Both parties have extensively briefed the issues at stake, and as the issues are wholly legal we see no advantage to remanding this case to the district court for further factfinding before passing judgment. ³

The government also contends, without elaboration, that our review is precluded by Rule 11(a)(2), Fed.R.Crim.P.. This rule permits a defendant to enter a conditional plea of guilty or nolo contendere while reserving the right "on appeal from the judgment, to review of the adverse determination of any specified pre-trial motion."

An examination of the purpose behind this rule persuades us that it prevents our hearing Pickett's appeal from his conviction. The rule was added as part of amendments to Rule 11 adopted in 1983. The Notes of the Advisory Committee on Rules state that these amendments were intended to permit a "defendant who has lost one or more pre-trial motions" from going "through an entire trial simply to preserve the pretrial issues for later appellate review." Notes of the Advisory Committee on Rules for the 1983 Amendments to Rule 11(a), reprinted in 18 U.S.C.A.Rules 1-11 at 359. By permitting the entry of conditional pleas of guilty and nolo contendere, the rule was intended to reduce the "waste of prosecutorial and judicial resources" occasioned by the decision to bring cases to trial solely to appeal collateral issues, and to advance thereby the objectives of the Speedy Trial Act. Ibid.

The Rule does not clarify which motions qualify as "specified pretrial motions" under the Rule. There are...