
USCA1 Opinion

	




          August 3, 1994    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                     ____________          No. 93-2232                                    UNITED STATES,                                      Appellee,                                          v.                                DARYL E. SINGLETERRY,                                Defendant, Appellant.                                     ____________                                     ERRATA SHEET               The  opinion of  this  court issued  on  July 18,  1994,  is          amended as follows:               Page 4, third  line from the bottom:  Replace "Fed. R. Crim.          P. 39(a)" with "Fed. R. Crim. P. 29(a)."                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-2232                                    UNITED STATES,                                      Appellee,                                          v.                                DARYL E. SINGLETERRY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Stahl, Circuit Judge.                                          _____________                                 ____________________            Stephen H. MacKenzie for appellant.            ____________________            Michael M.  DuBose, Assistant  United States  Attorney, with  whom            __________________        Jay P. McCloskey, United States Attorney, was on brief for appellee.        ________________                                 ____________________                                    July 18, 1994                                 ____________________                      STAHL, Circuit Judge.   In this appeal,  defendant-                             _____________            appellant  Daryl E. Singleterry  contests his jury conviction            and  resulting   sentence  for  violation   of  federal  drug            trafficking  laws.   Singleterry  raises two  issues for  our            consideration.   First,  he  protests  the  district  court's            refusal  to  instruct  the  jury  to  determine  whether  the            prosecution  produced  sufficient evidence  to  establish the            trustworthiness of his  voluntary, extrajudicial  confession.            Second,  Singleterry,  who  is  black,  maintains   that  his            sentence violates the equal protection component of the Fifth            Amendment  because the  difference in punishment  for cocaine            base  ("crack")  offenses   and  cocaine  ("cocaine  powder")            offenses  is  either irrational  or  racially discriminatory.            Finding neither argument persuasive, we affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      On January 14, 1993, Maine law enforcement  agents,            responding  to reports  of drug  dealing at  the Days  Inn in            Kittery, Maine,  commenced surveillance  of the motel.   That            evening,  they   observed  Jamee  Landry,  an   associate  of            Singleterry,  exit  Room  225  with  George  Wilson,  another            Singleterry  associate and  suspected drug  dealer.   The two            entered Landry's car and  drove to Portsmouth, New Hampshire,            where the agents lost  their trail.  Early the  next morning,                                         -2-                                          2            after they saw  Landry enter  Room 225,  the agents  executed            warrants to search both Room 225 and Landry's car.                      The search revealed a  number of items probative of            ongoing, armed  drug trafficking.   The agents  first entered            and  searched  Room 225,  where  they  found Singleterry  and            Landry.     They  seized   $2061  and  a   wallet  containing            Singleterry's driver's license from the pocket of a jacket on            a night table in the room.  Elsewhere in the room, the agents            discovered   two   savings   account   passbooks,   both   in            Singleterry's name, with  a combined  balance of  $5100.   In            Landry's  car, the agents found a plastic bag containing 6.46            grams of  crack cocaine in  the glove compartment,  a leather            gun holster on the front  passenger seat, as well as  a fully            loaded semi-automatic handgun under the same seat.                      After  this search  concluded, the  agents arrested            Singleterry,  and  properly  informed  him  of  his  "Miranda                                                                  _______            rights."    Singleterry  then  provided  the  agents  with  a            voluntary confession  telling them  that  he personally  paid            $250  to  his  source  in Lawrence,  Massachusetts,  for  the            cocaine base found in the vehicle.  He  also admitted that he            had stolen the handgun seized  by the agents, explaining that            he needed the handgun to protect himself from individuals who            were  jealous   of  his  cocaine  business.     In  addition,            Singleterry told  the agents that he did not have a job, that            he had been dealing cocaine base for a considerable period of                                         -3-                                          3            time, and that the cash seized from his jacket pocket as well            as the money in  his savings accounts were proceeds  from his            sale of cocaine base in  the Portsmouth, New Hampshire, area.            Finally,  Singleterry stated  that, as  in this  instance, he            purchased most of the cocaine base  he sold from a source  in            Lawrence or Lowell, Massachusetts.  According to Singleterry,            he would ordinarily pay  $250 for a quarter ounce  of cocaine            base and then sell it for $1250.                      Singleterry was charged in a three count indictment            with possession with intent  to distribute cocaine, 21 U.S.C.                841(a)(1) and  841(b)(1)(B)(iii) (1988  & Supp.  IV 1992)                          ___            (Count  I), the use and  carrying of a  firearm in connection            with a drug trafficking  offense, 18 U.S.C.   924(c)  (1988 &            Supp.  IV 1992)  (Count  II), and  deriving certain  personal            property  from  proceeds  obtained  as  the  result  of  drug            trafficking  activity, 21  U.S.C.    853 (1988)  (Count III).            The  parties agreed to  have the district  court decide Count            III on the basis of the trial evidence.                      At  trial,  the   government  introduced   evidence            probative of  the facts  described above, relying  heavily on            the   agents'   live   testimony   concerning   Singleterry's            confession.   At the close of the government's case in chief,            the defense moved  for judgment  of acquittal.   See Fed.  R.                                                             ___            Crim. P. 29(a).  Defendant's primary contention was  that the            government's  evidence  could   not  suffice  to   support  a                                         -4-                                          4            conviction   because  the   government  did   not  adequately            corroborate  Singleterry's confession.   See Opper  v. United                                                     ___ _____     ______            States, 348  U.S. 84  (1954) (prohibiting convictions  on the            ______            basis of uncorroborated confessions).  The government argued,            inter alia, that there was  ample evidence to demonstrate the            _____ ____            truth and  accuracy of the  confession.   The district  court            reserved judgment until the close of all the evidence.  After            the  defense  presented   no  evidence,   the  court   denied            defendant's motion in a detailed ruling from the bench.                      Singleterry  timely  requested  a jury  instruction            that "as a matter of law a confession alone is not sufficient            evidence  upon  which  to  convict the  defendant,  that  the            confession  must be  accompanied by  additional corroborative            [evidence]  or  sufficient  indicia  of  reliability."    The            district  court  refused  to   do  so,  explaining  that  the            corroboration  inquiry is  for the  court and  not  the jury.            According  to the  district court,  the role  of the  jury is            simply  to  consider whether  the  evidence establishes  each            element of  the offense  beyond a reasonable  doubt, although            the  jury  is  free to  question  the  probative  value of  a            confession  in  light of  the  strength  or weakness  of  the            corroborative evidence.                      After deliberating for less  than an hour, the jury            convicted Singleterry on Counts I and II.  The district court            later issued an orderof forfeiture in resolution ofCount III.                                         -5-                                          5                      At sentencing, the  district court  found that  the            offense  level, including relevant  conduct, involved a total            of 73.66 grams of  cocaine base, resulting in a  base offense            level of 32.  United States Sentencing Commission, Guidelines                                                               __________            Manual,      2D1.1  (Nov.  1993);   see  also  21   U.S.C.               ______                              ___  ____            841(b)(1)(B)  (prescribing  minimum  and maximum  sentences).            Because Singleterry had knowingly  given false testimony at a            pre-trial suppression hearing,  the court  added a  two-level            enhancement for  obstruction of  justice.  U.S.S.G.    3C1.1.            With a total adjusted base offense level of 34 and a criminal            history category of III,  the guideline range on Count  I was            188  to  235 months.1   U.S.S.G.  Ch.5,  Pt.A.   The district            court selected  the minimum sentence of  188 months, imposing            as  well the  consecutive 60  month sentence  mandated by  18            U.S.C.   924(c) for  the firearm offense.  In  another ruling            from the  bench,  the district  court rejected  Singleterry's            argument that stiffer penalties for cocaine base offenses, as            opposed  to cocaine  powder  offenses, violate  Singleterry's            right to equal protection of the law.                                            ____________________            1.  If  Singleterry had  been  convicted of  possession  with            intent  to distribute  cocaine  powder, and  if his  relevant            conduct raised the total of cocaine powder involved to  73.66            grams, his base offense level would have been 16, adjusted to            18 after the two-level  enhancement.  U.S.S.G.   2D1.1  and                                                                      ___            3C1.1; see also 21 U.S.C.   841(b)(1)(C) (prescribing maximum                   ___ ____            sentences).   With a criminal  history category  of III,  the            guideline  range on  this  count would  have  been 33  to  44            months.                                         -6-                                          6                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Trustworthiness of Confessions and the Role of the Jury             ___________________________________________________________                      Singleterry  contends  that   the  district   court            committed legal error when it refused to instruct the jury on            the need for corroboration  of his confession.  Specifically,            Singleterry  urges  us  to  adopt one  of  two  propositions.            First,  he suggests  that, when  the government's  case rests            primarily on  a  defendant's confession,  the district  court            must  instruct  the  jury  to  find   the  confession  to  be            trustworthy before  considering  it  as  evidence  of  guilt.            Second, Singleterry  asserts that, even  in the absence  of a            general  rule mandating  such  an  instruction, the  district            court is  obliged to instruct  the jury on  the corroboration            requirement where the evidence  of trustworthiness is so weak            that a jury  might differ from the court in its resolution of            the question.                      Whether the  court must assign  such a role  to the            jury is a  pure question  of law subject  to plenary  review.            See,  e.g., United States  v. Gallo, 20 F.3d  7, 11 (1st Cir.            ___   ____  _____________     _____            1994) (holding that de novo review is customary for questions                                __ ____            of law) (citing  In re Howard, 996 F.2d 1320,  1327 (1st Cir.                             ____________            1993)).   Thus, although  the district court's  reasoning may            prove persuasive,  and its conclusion coincide  with our own,                                         -7-                                          7            we are  free to reject  a reasonable  reading of  the law  in            favor of the interpretation we view as correct.                      To  begin  with, we  note  that  a defendant's  own            statements are never considered to be hearsay when offered by            the government; they are  treated as admissions, competent as            evidence  of guilt  without  any special  guarantee of  their            trustworthiness.   See  Fed.  R. Evid.  801(d)(2) &  advisory                               ___            committee's  note; see  also United  States v.  Barletta, 652                               ___  ____ ______________     ________            F.2d  218, 219  (1st Cir.  1981).   Nevertheless, there  is a            danger that the jury will rush to credit a confession without            seriously  considering whether  the defendant confessed  to a            crime he  did not commit.   As a  result, the  federal courts            have adopted common law rules designed to prevent a jury from            convicting  the   defendant  solely   on  the  basis   of  an            untrustworthy confession.   The general  rule is that  a jury            cannot  rely  on an  extrajudicial,  post-offense confession,            even  when   voluntary,  in  the   absence  of   "substantial            independent  evidence  which  would  tend  to  establish  the            trustworthiness of [the] statement."  Opper v. United States,                                                  _____    _____________            348 U.S. 84, 93 (1954).  See also Smith v. United States, 348                                     ___ ____ _____    _____________            U.S. 147  (1954); Warszower  v. United  States, 312  U.S. 342                              _________     ______________            (1941); United States  v. O'Connell, 703  F.2d 645 (1st  Cir.                    _____________     _________            1983).2   The Court has  explained that independent  proof of                                            ____________________            2.  Many states  adhere to a more  traditional formulation of            the corroboration  rule, requiring independent  proof of  the            corpus  delicti   ("body  of  the  crime"),   i.e.,  evidence            ______  _______                               ____                                         -8-                                          8            the commission of the  charged offense is not the  only means            of  establishing  the  trustworthiness  of   the  defendant's            confession; another  "available mode of  corroboration is for            the independent evidence to bolster the confession itself and            thereby  prove the  offense `through'  the statements  of the            accused."  Smith, 348 U.S. at 156.3                       _____                      The doctrinal nature and procedural concomitants of            the trustworthiness requirement  announced in  Opper are  not                                                           _____            entirely clear.   Traditionally,  the district court  makes a            preliminary determination  as to whether  testimony about the            confession  is  sufficiently  trustworthy  for  the  jury  to            consider the confession as evidence  of guilt.  See McCormick                                                            ___ _________               145,  at  562;  Corey J.  Ayling,  Comment,  Corroborating                                                            _____________            Confessions:  An  Empirical  Analysis  of   Legal  Safeguards            _____________________________________________________________                                            ____________________            independent of the confession showing that "(a) the injury or            harm constituting  the crime occurred; [and]  (b) this injury            or  harm was  done in  a  criminal manner."   1  McCormick on                                                             ____________            Evidence    145,  at 557  (John William  Strong ed.,  4th ed.            ________            1992) (hereinafter "McCormick").                                _________            3.  Singleterry misinterprets this comment as suggesting that            a full  confession (one involving admissions  to all elements            of the crime) automatically bolsters  itself, eliminating the            need for proof of trustworthiness.  According to Singleterry,            "under  Opper and Smith, the prosecution may rely entirely on                    _____     _____            a confession which is  not even proven to be  trustworthy and            put forth no evidence establishing the corpus delicti."  This            is simply  not so.   The Court  has never  suggested that  in            certain cases the government would be relieved of the  burden            of proving the trustworthiness of a confession.  Smith merely                                                             _____            stands for the proposition that in the absence of independent            evidence of  the corpus delicti the  government may establish                             ______ _______            the  trustworthiness of  the confession  with other  evidence            typically used to bolster  the credibility and reliability of            an out-of-court statement.                                          -9-                                          9            Against  False  Confessions, 1984  Wis.  L.  Rev. 1121,  1140            ___________________________            (hereinafter  "Ayling").   In  this respect,  the Opper  rule                                                              _____            essentially functions as a federal common law rule regulating            the  admission of  statements which  "are much  like hearsay,            [having  had] neither the compulsion of the oath nor the test            of  cross-examination."   Opper, 348  U.S. at  90.   See also                                      _____                      ___ ____            Ayling,  supra,   at  1136-37   &  n.66  (arguing   that  the                     _____            corroboration    rule    "governs   the    admissibility   of            evidence").4                                            ____________________            4.  Note that Federal Rule  of Evidence 804(b)(3) provides an            important parallel.   Under  Rule 804(b)(3), a  confession by            someone  other  than  the   accused  is  treated  as  hearsay            admissible  as evidence  of guilt  if certain  conditions are            satisfied.   Rule 804(b)(3) rests on the  assumption that, in            general, "persons  will not make damaging  statements against            themselves  unless they  are true."   4  Jack B.  Weinstein &            Margaret A. Berger, Weinstein's  Evidence   804(b)(3)[01], at                                _____________________            804-138  (1993).   But such  a confession  cannot be  used to            prove the defendant's guilt unless its use is necessitated by            the unavailability  of the declarant for courtroom testimony.            Fed.  R.  Evid.  804(b).     Additionally,  we  are  wary  of            individuals  who, as  a result  of mental  illness, a  fit of            passion, a misplaced sense  of sacrifice, or sheer mendacity,            falsely  incriminate themselves  in order  to spare  another.            Thus,  "[a]  statement tending  to  expose  the declarant  to            criminal liability  and offered  to exculpate the  accused is            not  admissible  unless  corroborating circumstances  clearly            indicate  the trustworthiness  of  the statement."   Fed.  R.            Evid.   804(b)(3).     It  is   also  significant   that  the            trustworthiness criterion of Rule 804(b)(3) is "cast in terms            of a requirement preliminary to admissibility," Fed. R. Evid.            804(b)(3) advisory  committee's note.  As  such, the district            court  makes the  first  and only  official determination  of            trustworthiness, although  it may  be proper to  instruct the            jury that statements admissible under Rule 804(b)(3) "must be            carefully scrutinized, weighed with  great care, and received            with  caution."  United States v. Miller, 987 F.2d 1462, 1465                             _____________    ______            (10th Cir. 1993).                                         -10-                                          10                      At  the  same   time,  courts  often   characterize            corroboration  requirements as  governing the  sufficiency of                                                           ___________            the  evidence.   See,  e.g., Warszower,  312  U.S. at  347-48                             ___   ____  _________            (holding that "[a]n uncorroborated confession . . . does  not            as  a matter of law  establish beyond a  reasonable doubt the            commission  of  a  crime");  O'Connell, 703  F.2d  at  647-48                                         _________            (analyzing  corroboration issue  in  rejecting  challenge  to            sufficiency of evidence); McCormick, supra,   145, at 561-63.                                      _________  _____            In  contrast to  a simple  rule of  admissibility, a  rule of            sufficiency  might theoretically  allow  the trial  judge  to            instruct the  jury  to make  the  final determination  as  to            whether  a  confession  has   been  corroborated.    See  id.                                                                 ___  ___            (reporting  that some  state courts  treat the  corroboration            requirement as a jury issue); Ayling, supra, at 1136-41.  The                                                  _____            Supreme Court has not ruled on the question, and neither this            circuit nor  any  other  circuit has  adopted  such  a  broad            approach.   But cf. United States v. Marshall, 863 F.2d 1285,                        ___ ___ _____________    ________            1287 (6th  Cir. 1988) (holding that the district court should            have  instructed the  jury on  the  corroboration requirement            where "[t]he need for corroboration [was] apparent").                      It is within the uncertain framework of sufficiency            that Singleterry positions his  appeal.  Singleterry does not            claim that the district court  erred in admitting evidence of            his confession.  Nor  does he assert that the  district court            improperly   found   that  the   confession   was  adequately                                         -11-                                          11            corroborated   in   denying  the   motion  for   judgment  of            acquittal.5   Rather, Singleterry insists that,  even after a            court  has properly  admitted  evidence of  a confession  and            correctly tested the sufficiency of the evidence to support a            conviction, the  court has a responsibility, either generally            or in certain cases,  to instruct the jury to  determine that            the  confession  is  trustworthy  before  considering  it  as            evidence  of  guilt.   This has  never  been the  law  in the            federal courts, and we decline to adopt such a rule today.                                              ____________________            5.  Two  paragraphs  in Singleterry's  opening  brief suggest            that  his  appeal comprehends  a  challenge  to the  district            court's  denial of  the motion  for acquittal.   Nonetheless,            Singleterry's reply  brief  states  that  "Appellant  is  not            arguing that the  evidence was insufficient for  the court to            determine that the corpus delicti existed.   Appellant is not            arguing  that . . . no rational  trier of fact could find the            corpus  delicti sufficient."   In  any event, it  is apparent            that  the  district court  did not  err  in finding  that the            government's    evidence     adequately    established    the            trustworthiness  of Singleterry's  confession.  Proof  of the            presence  in Landry's car of 6.46  grams of cocaine base -- a            controlled  substance in  an  amount  substantial  enough  to            suggest an intent to distribute --  independently establishes            the  corpus delicti  with respect  to Count  I.   No  more is                 ______ _______            required  to demonstrate the trustworthiness of Singleterry's            confession  to the  tangible crime  of possession  of cocaine            base  with  intent to  distribute.   See  Wong Sun  v. United                                                 ___  ________     ______            States,  371  U.S.  471,  489-90  n.15   (1963).    That  the            ______            confession is  trustworthy concerning admissions  relative to            Count  I  is strong  evidence  that  the  same confession  is            equally trustworthy concerning other admissions; namely, that            Singleterry used  the gun  found in  Landry's car  to protect            himself from rival drug dealers.  Even if that admission were            not sufficient to show that Singleterry "use[d] or carrie[d]"            the  gun  "in  relation   to"  his  possession  and  intended            distribution of the 6.46  grams of cocaine base, 18  U.S.C.              924(c)(1),   the  government's  other  physical  evidence  --            particularly the proximity of Singleterry's loaded gun to the            cocaine  base -- would most  certainly allow a  jury to reach            that conclusion beyond a reasonable doubt.                                         -12-                                          12                      Although we cannot  accept Singleterry's theory  as            such, we do not mean  to suggest that the district  court has            no continuing  duty to police  the jury's consideration  of a            confession's probative  value.  First, if  the district court            loses  confidence  in  its   earlier  determination  of   the            corroboration issue and the  evidence is otherwise inadequate            to  support a conviction, the proper course would be to enter            a judgment of acquittal.   Alternatively, if the government's            remaining evidence could support  a finding of guilt but  the            jury's incurable  exposure to the  confession raises  serious            questions  about the  prospect of  a  fair trial,  the proper            course would be to declare a mistrial.  See Stewart v. United                                                    ___ _______    ______            States, 366 U.S. 1, 10 (1961); United States v. Sepulveda, 15            ______                         _____________    _________            F.3d 1161,  1184 (1st Cir.  1993), cert. denied,  62 U.S.L.W.                                               _____ ______            ___ (U.S. June 20, 1994).                      Second,  a  confession  otherwise admissible  under            Opper  may nevertheless  be  inadmissible "if  its  probative            _____            value  is substantially  outweighed by  the danger  of unfair            prejudice."  Fed. R. Evid. 403.6                      Third,   particularly   where  a   full  confession            dominates the government's proof, it is fair to assume that a            jury  will  interpret  its  duty  to  find  guilt  beyond   a            reasonable  doubt to  mean  that it  cannot  simply accept  a                                            ____________________            6.  Singleterry does  not argue  on appeal that  the district            court should have excluded evidence of the confession, or any            portion thereof, on Rule 403 grounds.                                         -13-                                          13            confession at face value.  See D'Aquino v. United States, 192                                       ___ ________    _____________            F.2d  338, 357 (9th Cir.  1951) (holding that  where there is            adequate   corroboration  of   the   confession  "the   usual            instructions on presumption of innocence and reasonable doubt            adequately cover[] all that  the jury need be told  upon this            question  of  [corroboration]")  (citing Pearlman  v.  United                                                     ________      ______            States,  10 F.2d 460 (9th Cir. 1926)), cert. denied, 343 U.S.            ______                                 _____ ______            935  (1952); McCormick, supra,    145, at 564  ("Nor is there                         _________  _____            sufficient need to submit the matter to the  jury, as long as            the jury is  adequately sensitized  to the need  to find  all            elements of the crimes charged beyond a reasonable doubt.").                      Fourth, we note  that a judge has  wide latitude to            select  appropriate, legally  correct instructions  to ensure            that  the  jury  weighs the  evidence  without  thoughtlessly            crediting an  out-of-court confession.  Cf.  Miller, 987 F.2d                                                    ___  ______            at 1465 (holding that district court properly instructed jury            that  it  could rest  guilty  verdict  on uncorroborated  yet            credible testimony  of an accomplice but should "keep in mind            that such testimony is always to be received with caution and            weighed  with great care"); United States v. Twomey, 884 F.2d                                        _____________    ______            46, 53 (1st Cir. 1989) (suggesting that court may "assist the            jury by demonstrating to  them how to go about  analyzing the            evidence"), cert. denied, 496 U.S. 908 (1990); Ayling, supra,                        _____ ______                               _____            at  1141 (arguing that "guidance on  the means of determining            the  ultimate credibility  of the  evidence accords  with the                                         -14-                                          14            jury's   role   as  finder   of   evidentiary  sufficiency").            Accordingly, even if the district court has properly admitted            evidence of  a confession,  the court  has the  discretion to            determine  that the  question  of trustworthiness  is such  a            close one that it  would be appropriate to instruct  the jury            to conduct its own corroboration analysis.                      In  this  case, there  is  no  indication that  the            district court  overlooked its  obligation to avoid  or limit            undue  prejudice  stemming  from  evidence  of  Singleterry's            confession.  The  district court had  no occasion to  exclude            the  confession  under Rule  403,  correctly  found that  the            confession was  trustworthy, and properly instructed the jury            on  the  government's  burden  of  proof.    Finally,  in   a            manifestly  appropriate  exercise  of  discretion,  the court            directed  the  jury  to   "consider  any  .  .  .   facts  or            circumstances  disclosed by  the evidence  . .  .  tending to            corroborate or to contradict the version of  events which the            witnesses have told you."                      In sum, there  was no  error in  the lower  court's            refusal   to   instruct  the   jury   to   apply  the   Opper                                                                    _____            trustworthiness requirement  before considering Singleterry's            confession to be probative of his guilt.            B.    Constitutionality  of  Sentencing  Distinction  Between            _____________________________________________________________            Cocaine Base and Cocaine Powder            _______________________________                      Singleterry maintains that his  sentence on Count I            is  the  product of  an unconstitutional  distinction between                                         -15-                                          15            offenses involving cocaine  base and those involving  cocaine            powder.    See  18  U.S.C.     841(b);  U.S.S.G.     2D1.1(c)                       ___            (equating  1 gram of cocaine base with 100 grams of cocaine).            Singleterry  did not contend below that the laws at issue are            facially unconstitutional.  Instead,  he offered evidence  in            an  attempt to  demonstrate that  the sentencing  distinction            between  cocaine  base  and  cocaine  is  either  irrational,            racially  motivated,  or   both.    On  appeal,   Singleterry            essentially  argues  that   the  district  court  erroneously            applied the  relevant constitutional principles  to the facts            found at  the  sentencing  hearing.    We  first  recite  the            procedural rules  that govern  this portion of  our analysis,            then turn to a brief discussion of the merits.                      While pure questions of law  are subject to de novo                                                                  __ ____            review, we generally  examine a  district court's  fact-based            determinations for clear  error.  Williams v. Poulos, 11 F.3d                                              ________    ______            271, 278 (1st Cir. 1993); In re  Howard, 996 F.2d at 1327-28.                                      _____________            Thus, the district court's findings of fact are conclusive on            appeal  "unless,  after  carefully  reading  the  record  and            according due deference to the trial court's superior ability            to judge  credibility, we  form `a strong,  unyielding belief            that a  mistake has been  made.'"   Williams, 11 F.3d  at 278                                                ________            (quoting Dedham  Water Co.  v. Cumberland Farms  Dairy, Inc.,                     _________________     _____________________________            972  F.2d 453,  457 (1st Cir.  1992)).  The  same standard of            review  often applies  to mixed  questions of  law  and fact,                                         -16-                                          16            although  we are less likely to defer to the district court's            conclusions where  proper  application of  the law  primarily            requires a  clarification of the  relevant legal  principles.            Id. at 278 & n.11 (citing In re Howard, 996 F.2d at 1328).            ___                       ____________                      The clear error standard  does not apply,  however,            when  the fact-finding  at issue  concerns "legislative,"  as            opposed to "historical" facts.  See generally Dunagin v. City                                            ___ _________ _______    ____            of Oxford, 718 F.2d  738, 748 n.8 (5th  Cir. 1983) (en  banc)            _________            (plurality), cert.  denied, 467  U.S. 1259 (1984);  Menora v.                         _____  ______                          ______            Illinois  High  Sch. Ass'n,  683  F.2d 1030,  1036  (7th Cir.            __________________________            1982),  cert. denied, 459 U.S. 1156 (1983); see also Lockhart                    _____ ______                        ___ ____ ________            v.  McCree,  476  U.S.  162,  168-69  n.3  (1986)  (reserving                ______            question while  suggesting approval  of plurality  opinion in            Dunagin).       "Legislative   facts    are   those   general            _______            considerations that  move a  lawmaking or rulemaking  body to            adopt  a rule,  as distinct  from the  facts  which determine            whether the rule was correctly applied."  Menora, 683 F.2d at                                                      ______            1036.   Accordingly, we need  not defer to  the lower court's            assessment   of  the   "evidence"   Singleterry   offers   to            demonstrate the irrational and racially discriminatory nature            of the adoption  of the distinction between  cocaine base and            cocaine powder offenses.                 1.  Irrational Classification                 _____________________________                      It   is    well   settled   that    an   irrational            classification  imposed by  federal law  is violative  of the                                         -17-                                          17            equal  protection  component  of  the Fifth  Amendment's  Due            Process  Clause.  See  Miranda v. Secretary  of Treasury, 766                              ___  _______    ______________________            F.2d 1, 6  (1st Cir. 1985) (citing Mathews v.  De Castro, 429                                               _______     _________            U.S.  181,  182 n.1  (1976)).   Singleterry  contends  that a            distinction between cocaine base and cocaine powder is such a            classification  because the  use  of  cocaine base  allegedly            presents no  greater health  threat than  the use of  cocaine            powder.   Yet Singleterry  presents little or  no evidence to            support  this  contention,  nor  has he  explained  why  such            evidence  would  be dispositive  of  the  rationality of  the            distinction at issue.                      Even  if  there is  no  telling  difference in  the            health effects associated with the use of different types  of            cocaine, it would be rational  to treat cocaine base offenses            more harshly for other reasons.  For example,  Congress could            rationally  seek to  strengthen the  deterrent effect  of the            narcotics laws  by  increasing the  "cost" to  a criminal  of            using or selling a cocaine substance that, like cocaine base,            is  sold  at  a   cheaper  unit  price  than   other  cocaine            substances.     Indeed,   of  the   four  citations   to  the            Congressional Record  that Singleterry offers in  his opening            brief  as  probative of  congressional intent,  each suggests            that  Congress  has been  concerned  that  the low  price  of            cocaine  base (in the absolute  sense as well  as relative to            cocaine) would lead to an explosion in drug use.                                         -18-                                          18                      In   any  event,   the  district   court  correctly            concluded that  "Congress  had before  it  sufficient .  .  .            information to  make distinctions  that would  justify .  . .            more  severe sentences  for trafficking  in or  using cocaine            base  or crack than cocaine itself."  Accord United States v.                                                  ______ _____________            Frazier,  981 F.2d  92, 95  (3d Cir.  1992) (noting  that the            _______            Third  Circuit,  "along with  every  other  federal court  of            appeals to rule on  the issue, has held that  the distinction            between cocaine  base and  cocaine in the  federal sentencing            scheme   is   constitutional  under   rational   basis  equal            protection  review"), cert.  denied,  113 S.  Ct. 1661,  1662                                  _____  ______            (1993).                 2.  Racially Discriminatory Classification                 __________________________________________                      Singleterry next argues that the  harsher penalties            for cocaine base  offenses are unconstitutional because  they            have such a disproportionate effect on blacks as to give rise            to an  inference that Congress and  the Sentencing Commission            established   those  penalties  for  the  purpose  of  racial            discrimination.  See Yick Wo v. Hopkins, 118 U.S. 356 (1886).                             ___ _______    _______            As  proof  of  disparate   impact,  Singleterry  offers  some            evidence that  (1) most  cocaine base  users are  black while            most users of cocaine are white, and (2) the vast majority of            sentences  for cocaine  base  offenses are  imposed on  black            defendants while white defendants comprise the largest  share            of  those  sentenced  for  cocaine offenses.    In  addition,                                         -19-                                          19            Singleterry   has   offered  some   evidence   that  Congress            anticipated  such an impact  because, in  adopting heightened            penalties  for cocaine  base offenses,  it was  attempting to            address a problem afflicting lower-income urban communities.                      We agree  that where  evidence of disparate  impact            leads  most  naturally  to  an  inference  of  discriminatory            purpose, the  governmental classification  may be  subject to            strict  scrutiny  under  equal  protection principles.    See                                                                      ___            McCleskey  v. Kemp,  481 U.S.  279, 293 (1987)  (holding that            _________     ____            "`stark'" statistical pattern may serve "as the sole proof of            discriminatory  intent  under  the   Constitution")  (quoting            Village  of Arlington  Heights  v.  Metropolitan  Hous.  Dev.            ______________________________      _________________________            Corp., 429 U.S.  252, 266 (1977));  Washington v. Davis,  426            _____                               __________    _____            U.S.  229, 242 (1976) ("[D]iscriminatory impact . . . may for            all   practical   purposes  demonstrate   unconstitutionality            because  in various circumstances  the discrimination is very            difficult to  explain on nonracial  grounds."); Gomillion  v.                                                            _________            Lightfoot, 364 U.S.  339, 341  (1960); Yick Wo,  118 U.S.  at            _________                              _______            373-74.    But  here,  as  we  suggested  in  discussing  the            rationality  of the  sentencing  scheme,  there are  racially            neutral grounds  for the classification that  more "plausibly            explain[]" its impact on blacks.  Personnel Adm'r v.  Feeney,                                              _______________     ______            442 U.S. 256, 275 (1979).  As a result, there is insufficient            evidence "that the distinction drawn between cocaine base and            cocaine was motivated by  any racial animus or discriminatory                                         -20-                                          20            intent  on  the part  of  either Congress  or  the Sentencing            Commission."  Frazier,  981 F.2d at 95 (citing  United States                          _______                           _____________            v. Simmons, 964 F.2d 763 (8th Cir.), cert. denied, 113 S. Ct.               _______                           _____ ______            632 (1992), and United  States v. Galloway, 951 F.2d  64 (5th                            ______________    ________            Cir. 1992)).   But see United States  v. Clary, 846  F. Supp.                           ___ ___ _____________     _____            768  (E.D. Mo.  1994)  (holding  that sentencing  distinction            between  cocaine  base  and  cocaine  powder  violates  equal            protection principles after  finding circumstantial  evidence            of unconscious discriminatory purpose).   In short, there was            no  error  in  the  district court's  determination  to  this            effect.                      Finally, we note that while "[t]he equal protection            obligation  imposed by  the Due Process  Clause of  the Fifth            Amendment is not an obligation to provide the best governance            possible," Schweiker v. Wilson, 450 U.S. 221, 230 (1981), the                       _________    ______            absence  of a constitutional command  is not an invitation to            government   complacency.    Although   Singleterry  has  not            established  a   constitutional  violation,  he   has  raised            important questions  about the  efficacy and fairness  of our            current  sentencing policies  for offenses  involving cocaine            substances.   We leave the resolution of these matters to the            considered judgment  of those  with the proper  authority and            institutional capacity.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                                         -21-                                          21                      For  the foregoing reasons, we affirm Singleterry's            conviction as well as his sentence.                      So ordered.                      ___________                                         -22-                                          22
