Appeal from the United States District Court for the District of Columbia (02cr00315-01)
Before: Sentelle, Randolph, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Randolph, Circuit Judge
This appeal from a criminal conviction exposes a problem in the provisions setting penalties for cocaine offenses. A jury found George Brisbane guilty of distributing five or more grams of "cocaine base," in violation of 21 U.S.C. § 841. Because of Brisbane's status as a career offender, the district court sentenced him to 360 months' imprisonment. Punishment for violating § 841 depends on the weight of drugs involved in the offense. A certain quantity of "cocaine base" will trigger much stiffer penalties than an equivalent quantity of "cocaine, its salts, optical and geometric isomers, and salts of isomers." Compare 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (B)(ii)(II) ("subsection (ii)") with 21 U.S.C. § 841(b)(1)(A)(iii) & (B)(iii) ("subsection (iii)"). The problem is that, chemically, "cocaine" and "cocaine base" mean the same thing.
Cocaine is a naturally occurring alkaloid - that is, a base -found in the leaves of the coca plant.*fn1 The leaves typically undergo extensive processing before reaching the United States. Processors shred the leaves and mash them with a strong alkali (like lime), a solvent (like kerosene), and sulfuric acid. The result is a light brown paste containing cocaine base (cocaine in its natural alkaloid form) and a number of other chemicals. The cocaine paste is processed with hydrochloric acid to create a salt, cocaine hydrochloride, a white or off-white powder. It is usually this powder that is shipped to the United States, where it is known colloquially as "cocaine."
Users generally consume powdered cocaine by snorting it. Since cocaine hydrochloride is water soluble, the nasal mucous membranes absorb the chemical, allowing it to enter the blood stream and eventually reach the brain. Users can also apply the powder to other mucous membranes, or dissolve it in water and inject it intravenously. But they cannot smoke it. The temperature at which cocaine hydrochloride evaporates is higher than the temperature at which its active ingredient breaks down.
Cocaine base, on the other hand, can be smoked. The ability to smoke the drug is important because smoking produces a quicker, shorter, and more intense high than snorting. This makes it much more addictive. Smoking cocaine paste, which contains cocaine base, is common in the Andes but rare in the United States because cocaine is generally imported in its powdered, nonsmokable form.
Beginning in the early 1970s, American drug dealers developed several methods to free cocaine base from cocaine hydrochloride so that it could be smoked. The most common method used to produce this "freebase" cocaine involved flammable substances and could result in dangerous explosions. This danger, along with the high price of cocaine, limited freebase's popularity.
In the mid-1980s, a new form of smokable cocaine became widely available. Known by the street name "rock" or "crack," this form was much easier to manufacture than other forms of freebase because the process did not involve volatile chemicals. Also, unlike the "traditional" method of making freebase, the "baking soda method" used to make crack did not remove impurities and adulterants present in the powder. These characteristics combined to produce a highly addictive form of smokable cocaine that was far cheaper than either powder or freebase had ever been. While cost had previously limited cocaine use to people of means, crack made it available to large numbers of young and low-income users. Crack spread rapidly through several large cities. In 1986, Congress passed the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, without such normal deliberative processes as committee hearings and reports. See United States Sentencing Commission, COCAINE AND FEDERAL SENTENCING POLICY 5-6 (2002) (" Sentencing Commission Report "). Among other measures, the statute purported to impose much higher sentences for crack than for powdered cocaine. Id. at 4-5.
The statute established the quantities of "cocaine, its salts ..." that would trigger various penalty tiers. But rather than describing crack by street name or manufacturing process, the statute established lower thresholds for any "mixture containing cocaine base." Because "cocaine" and "cocaine base" carry the same chemical meaning (the word "base" merely refers to the fact that cocaine is a base), the statute appears ambiguous, providing two different sets of penalties for the same offense. If the ambiguity remains unresolved, the rule of lenity would suggest imposition of the lower sentence. See, e.g., United States v. Ray, 21 F.3d 1134, 1140 (D.C. Cir. 1994).
Despite the fact that § 841 is the frequent subject of judicial opinions, the issue just identified has rarely arisen, for two reasons. The first is that the vast majority of cocaine base prosecutions involve crack. Whatever Congress meant by "cocaine base," there can be no doubt that it meant to include crack. United States v. Brown, 859 F.2d 974, 976 (D.C. Cir. 1988). Second, the Sentencing Guidelines define "cocaine base" as meaning only crack, and apply the lower penalties to other forms of cocaine base. U.S.S.G. § 2D1.1(c)(D). In most cases involving cocaine base that is not crack, the ambiguity therefore has no practical consequence.
Brisbane's case is different. After the government rested, Brisbane moved for a judgment of acquittal, arguing that the government had not proven the substance was crack as alleged in the indictment. (The indictment alleged that he distributed "cocaine base, also known as crack.") The government's expert witness, a forensic chemist, testified that the substance was 49 percent cocaine base, but she had done no tests to determine whether it was crack and could not say that it was. The district court ruled that the government had failed to prove that the substance was crack, a ruling it later characterized as a partial judgment of acquittal. But the court ruled that the government had offered enough evidence to support a guilty verdict for distribution of "cocaine base," rejecting the defendant's argument that "cocaine base" as used in § 841 meant crack only.
Had Brisbane been sentenced under the drug sentencing guidelines, he would have received the lower sentence for distribution of "cocaine." But Brisbane is a career offender. The career offender guidelines determine the sentencing range by reference to the statutory maximum sentence for the offense of conviction. See U.S.S.G. § 4B1.1. The district court calculated Brisbane's sentence using 21 U.S.C. § 841(b)(1)(B)(iii), which provides for a maximum life sentence for defendants with prior drug offenses convicted of distributing five or more grams of "cocaine base." To determine whether the evidence presented at Brisbane's trial was sufficient to support his conviction, we therefore must confront the ambiguity in § 841.
Four of the courts of appeals to consider this issue read "cocaine base" to include all base forms of cocaine and "cocaine, its salts ..." to mean only cocaine hydrochloride. See United States v. Barbosa, 271 F.3d 438, 461-67 (3d Cir. 2001); United States v. Butler, 988 F.2d 537, 542-43 (5th Cir. 1993); United States v. Jackson, 968 F.2d 158, 161-63 (2d Cir. 1992); United States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992). Similar statements appear in dicta in this court's opinion in Brown, 859 F.2d at 975-76. As a purely textual matter, this interpretation is far from convincing. Since cocaine hydrochloride is a salt, it is covered by subsection (ii)'s reference to "its salts." Unless the word "cocaine" in subsection (ii) has no ...