                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1927
                            Filed December 19, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SAMELLA SIMONE BAILEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer

(motion to dismiss) and David P. Odekirk (trial and sentencing), Judges.




      The defendant appeals her conviction of delivering or possessing with the

intent to deliver a simulated controlled substance as a second offender.

AFFIRMED.




      Eric W. Manning of Manning Law Office, PLLC, Urbandale, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
                                           2


VAITHESWARAN, Judge.

       An undercover law enforcement agent contacted Samella Simone Bailey

about purchasing two ounces of crack cocaine. Bailey agreed to sell the agent

crack cocaine for a specified price. The two met at a predetermined location, and

Bailey handed the agent a bag of suspected crack cocaine. The substance was

field tested and turned out not to be crack cocaine.

       The State charged Bailey with delivery or possession with intent to deliver

a simulated controlled substance (more than forty grams of simulated cocaine

base) as a second offender. See Iowa Code §124.401(1)(a)(3) (2017).1 The crime

was a class “B” felony. Bailey moved to dismiss the charge on the ground the

statute required an actual rather than simulated controlled substance and she

should have been charged under section 124.401(1)(a)(8), which was a class “C”

felony.2 The district court denied the motion. Bailey waived her right to a jury trial,

and the district court found her guilty on the minutes of testimony. The court

sentenced Bailey to a prison term not exceeding twenty-five years, with a one-third

mandatory minimum. On appeal, Bailey contends (1) the district court erred in

denying her motion to dismiss and (2) the sentence was illegal.

I.     Motion to Dismiss

       Bailey argues the structure of chapter 124 together with its plain language

required dismissal of the trial information. In her view, the chapter “generally

defines the criminal activity,” then “define[s] the punishments for varying


1
 The charge appears in an amended trial information.
2
  Effective July 1, 2017, section 124.401(1)(c)(8) was redesignated as section
124.401(1)(c)(9). See 2017 Iowa Acts ch. 145, § 4–10, 24–27. The previously-numbered
sections are applicable to Bailey’s conviction, because her offense predated the changes.
                                           3


aggravating circumstances,” and finally, “defines the penalty for a violation of the

chapter without aggravating circumstances.” She asserts all the penalty provisions

except one require “an actual controlled substance.” She contends the single

exception is section 124.401(1)(c)(8), which carries a penalty assigned “without

regard to . . . the existence of an actual controlled substance.”

       Bailey’s argument is appealing at first blush. See Iowa Code §124.401. But

it ignores key language in the provision under which she was charged:

       1. Except as authorized by this chapter, it is unlawful for any person
       to manufacture, deliver, or possess with the intent to manufacture or
       deliver, a controlled substance, a counterfeit substance, a simulated
       controlled substance, or an imitation controlled substance . . . .
              a. Violation of this subsection, with respect to the following
       controlled substances, counterfeit substances, simulated controlled
       substances, or imitation controlled substances, is a class “B” felony,
       ....
                     ....
                     (3) More than fifty grams of a mixture or substance
              described in subparagraph (2) which contains cocaine base.

See Iowa Code § 124.401(1)(a)(3) (emphasis added).3 Because the introductory

paragraph refers to a “simulated controlled subtance” as well as a “controlled

substance,” delivery or possession of simulated “cocaine base” would fall within

the ambit of section 124.401(a)(3). The district court did not err in reaching this

conclusion. See State v. Childs, 898 N.W.2d 177, 181 (Iowa 2017) (reviewing

questions of statutory interpretation for errors of law).

       Nor did the court err in rejecting Bailey’s assertion that “the minutes as

submitted [did] not amount to probable cause to support a criminal charge under

Iowa Code section 124.401(1)(a)(3).” See State v. Rimmer, 877 N.W.2d 652, 660


3
 Effective May 12, 2017, section 124.401(1)(a)(3) substituted “two hundred” for “fifty.”
See Acts 2017 Iowa Acts ch. 122, § 7.
                                          4


(Iowa 2016) (“We accept the facts alleged by the State in the trial information and

attached minutes as true.”). The facts as disclosed in the minutes of testimony

satisfied the statutory definition of “simulated controlled substance”:

       [A] substance which is not a controlled substance but which is
       expressly represented to be a controlled substance, or a substance
       which is not a controlled substance but which is impliedly
       represented to be a controlled substance and which because of its
       nature, packaging, or appearance would lead a reasonable person
       to believe it to be a controlled substance.

Iowa Code § 124.101(28)4; cf. State v. Henderson, 478 N.W.2d 626, 627–28 (Iowa

1991) (rejecting vagueness challenges to the definition).          Bailey expressly

represented to the undercover agent that she would be selling her crack cocaine.

Testing revealed the substance she sold was not crack cocaine. Based on these

facts, the State could charge Bailey under section 124.401(1)(a)(3). We affirm the

district court’s denial of the dismissal motion.

II.    Sentencing

       Bailey raises various challenges to her sentence. First, she contends the

court should “reconsider the primacy of [State v. Criswell, 242 N.W.2d 259, 260

(Iowa 1976)] and overturn precedent.” In Criswell, the court addressed “whether

the trial court erred by imposing consecutive sentences upon convictions, of two

separate offenses, obtained in a single prosecution, charged in a single

information, and arising from the same criminal transaction.” 242 N.W.2d at 260–

61. Bailey appears to equate her enhancement for a prior conviction with “a

separate offense . . . obtained in a single prosecution.” Id. at 260. Our courts have



4
  The definition of “simulated controlled substance” is now redesignated as section
124.101(29). See 2017 Iowa Acts 2017 ch. 145, § 2.
                                        5

treated them differently. See State v. Gordon, 732 N.W.2d 41, 44 (Iowa 2007)

(“[H]abitual-offender status is not a separate offense; it is simply a sentencing

enhancement.” (citation omitted)); State v. Hardin, No. 00-1400, 2002 WL 663557,

at *3 (Iowa Ct. App. Apr. 24, 2002) (“When a person is charged with an habitual

offense, they are not being charged with a separate offense. Rather, the habitual

offender statute only provides for enhanced punishment of the current offense.”

(citation omitted)); cf. State v. Butler, 706 N.W.2d 1, 5–6 (Iowa 2005) (addressing

requirement of notice to defendant of enhanced charges). More fundamentally,

we are not at liberty to overrule Iowa Supreme Court precedent, even if the

precedent applies to the facts of the case. See State v. Beck, 854 N.W.2d 56, 64

(Iowa Ct. App. 2014).

      Next, Bailey argues “[t]he District Court had the ability to find Ms. Bailey

guilty of a lesser included offense, but failed to do so.” She bases her contention

on the fact she “was never found to have possessed any actual illegal substances.”

But, as discussed, the statute criminalizes possession or delivery of a “simulated

controlled substance” to the same extent as an actual controlled substance.

      Finally, Bailey argues her sentence amounted to cruel and unusual

punishment under the United States Constitution. She cites the “25-year sentence

with a minimum of one third to be served for a single act of selling a simulated

substance with no traces of an illegal substance.”        Again, Bailey bases her

challenge on her sale of fake rather than real cocaine.

      To reiterate, Iowa Code section 124.401(1)(a)(3) sets forth the same

penalty for sale of simulated and real cocaine base. The question we must decide

is whether the sentence under section 124.401(1)(a)(3) amounts to cruel and
                                          6

unusual punishment as applied to Bailey. See State v. Wickes, 910 N.W.2d 554,

572 (Iowa 2018). The threshold inquiry is “whether the sentence being reviewed

is ‘grossly disproportionate’ to the underlying crime.” Id. (citing Solem v. Helm, 463

U.S. 277, 290–91 (1983)). Under similar circumstances, the Iowa Court of Appeals

found defendants’ sentences did not violate this principle. See State v. Daniels,

No. 14-1442, 2016 WL 5408279, at *3 (Iowa Ct. App. Sept. 28, 2016) (finding no

high risk of gross disproportionality because “[c]ocaine trafficking is exactly what

Iowa Code section 124.401(1)(a)(3) (2013) was designed to prevent, and the

statute is precise in its application” and “[t]he cited section enhances the sentence

based on large quantities precisely defined”); State v. Daniels, No. 14-1480, 2015

WL 9450636, at *11 (Iowa Ct. App. Dec. 23, 2015) (finding no gross

disproportionality in a defendant’s sentence where his “conduct [fell] squarely

within the elements of possession of a controlled substance, to wit: more than 50

grams of cocaine base with intent to distribute”); State v. Newell, No. 13-1436,

2015 WL 566654, at *7 (Iowa Ct. App. Feb. 11, 2015) (finding a sentence under

section 124.401(1)(a)(3) did not lead to an inference of gross disproportionality).

The same is true here.

       Bailey’s sale of $3400 worth of a substance she represented to be crack

cocaine fell squarely within the parameters of the narrowly defined statute. On our

de novo review, we conclude the sentence was not grossly disproportionate to her

offense.   Accordingly, the sentence did not amount to cruel and unusual

punishment.

       We affirm Bailey’s conviction, judgment, and sentence.

       AFFIRMED.
