                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2005

USA v. Villalona
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3426




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Recommended Citation
"USA v. Villalona" (2005). 2005 Decisions. Paper 846.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/846


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                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 04-3426
                    ____________

          UNITED STATES OF AMERICA

                          v.

               EDWIN VILLALONA,

                          Appellant
                    ____________

    On Appeal from the United States District Court
             for the District of New Jersey
                 (D.C. No. 03-cr-00718)
       District Judge: Honorable Joel A. Pisano
                     ____________

      Submitted Under Third Circuit LAR 34.1(a)
                   June 30, 2005

Before: NYGAARD, SMITH and FISHER, Circuit Judges.

                 (Filed July 14, 2005)
                    ____________

             OPINION OF THE COURT
                  ____________
FISHER, Circuit Judge.

       On September 22, 2003, Appellant Edwin Villalona pleaded guilty to distribution

and intent to distribute over 50 grams of cocaine base (“crack cocaine”).1 On July 28,

2004, in accordance with 21 U.S.C. § 841(b)(1)(A)(iii), the United States District Court

for the District of New Jersey sentenced Villalona to the statutory mandatory minimum of

120 months imprisonment. In his timely appeal,2 Villalona seeks a downward departure

of his sentence on the basis that the statutorily imposed stricter penalties for crack cocaine

versus powder cocaine are fundamentally unfair and violate his constitutional due process

rights. For the reasons below, we will affirm the sentence.

       Villalona knowingly and voluntarily pleaded guilty to the crack cocaine violation,

which carried a statutory penalty range of 120-135 months imprisonment. Had his

violation been for the exact same amount of powder cocaine, 197.99 grams, the penalty

range would have been only 21-27 months imprisonment.3 The legislature drew a

distinction between crack cocaine and powder cocaine in 21 U.S.C. § 841, which utilizes


       1
           In violation of Titles 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(1)(A)(iii), 18 U.S.C.
§ 2.
       2
        The United States challenged the timeliness of Villalona’s appeal given that it was
filed one day late and Villalona did not meet the requirements of Fed. R. App. P. 4(c)(1)
regarding notices of appeal from inmates confined to an institution. Our jurisdictional
requirements in this regard subsequently have been satisfied based upon Villalona’s
February 17, 2005 declaration in compliance with 28 U.S.C. § 1746 indicating that he
entered his appeal into the prison’s legal mail system within 10 days after his sentencing.
See Fed. R. App. P. 4(c)(1).
       3
           Based on a total offense level of 15 and a criminal history category of II.

                                                 2
a 100:1 drug quantity ratio, whereas the penalty for an offense involving 500 grams of

powder cocaine equates to that for an offense involving 5 grams of crack cocaine.

Villalona proposes that no scientifically meaningful distinction exists between crack

cocaine and powder cocaine to merit the harsher sentence for a crack cocaine violation.

He contends that the premise for the statutory penalty – i.e., the legislature’s

determination that crack cocaine is a more dangerous drug than powder cocaine – is

untrue. Accordingly, he asserts that sentencing him to the stricter penalty for crack

cocaine violated his due process rights as guaranteed by the Fifth Amendment. See

United States v. Beler, 20 F.3d 1428, 1432 (7th Cir. 1994) (quoting United States v.

Campbell, 985 F.2d 341, 348 (7th Cir. 1993) (“criminal defendant has a due process right

to be sentenced on the basis of reliable information.”).

       We continue to uphold the validity of the legislature’s distinction between the two

drugs. As stated by this Court:

       There is simply no force to the argument that “crack” or cocaine base is no
       different from [powder] “cocaine,” and as a consequence Congress’s
       decision is irrational. Crack is chemically different from [powder] cocaine.
       It is used differently than [powder] cocaine. Its effect upon the human body
       is different from that of [powder] cocaine.

United States v. Jones, 979 F.2d 317, 319 (3d Cir. 1992). In United States v. Alton, 60

F.3d 1065, 1069 (3d Cir. 1995), we continued to uphold “the constitutionality of both the

federal drug statutes (21 U.S.C. § 841(b)(1) & 846) and the guideline provisions

(U.S.S.G. § 2D1.1) that treat crack cocaine offenses more severely than offenses



                                              3
involving an equal quantity of powder cocaine.” Other courts have held as reliable the

legislature’s determination that the qualities of crack cocaine merit a distinction from

powder cocaine. See United States v. Lattimore, 974 F.2d 971, 975 (8th Cir. 1992)

(emphasizing the potency of crack cocaine, the ease with which drug dealers can carry

and conceal it, its highly addictive nature, and the violence which often accompanies

trade in it). See also United States v. Buckner, 894 F.2d 975 (8th Cir. 1990) (holding that

the sentences imposed by the Sentencing Guidelines for crimes involving crack cocaine

were not disproportionate to the seriousness of those offenses); United States v.

Lawrence, 951 F.2d 751 (7th Cir. 1991) (concluding that the penalty scheme does not

violate the Due Process clause and serves a national purpose).

       We have held in the context of an Eighth Amendment and Equal Protection

challenge that neither Congress nor the Commission stepped beyond the bounds of the

Constitution in selecting the 100:1 ratio. United States v. Frazier, 981 F.2d 92, 96 (3d

Cir. 1992). Similarly, the 100:1 ratio in the treatment of drug weight does not violate an

offender’s due process rights. There are reasonable grounds for imposing a greater

punishment for offenses involving a particular weight of cocaine base than for

comparable offenses involving the same weight of [powder] cocaine. Id. Villalona’s

120-month sentence compared to the 21 to 27 months he would have received had his

offense been in powder cocaine represents “approximately a 5-to-1 ratio”; a punishment

disparity far shorter than the literal 100:1 drug weight ratio.



                                               4
       Based on the foregoing, we conclude Villalona’s statutory mandatory minimum

sentence for his crack cocaine offense does not violate his due process rights and does not

compel a downward departure of his sentence. Accordingly, we will affirm the judgment

of the District Court.




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