                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            APR 6 2004
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 03-1015
          v.                                         District of Colorado
 JOE HIGHTOWER,                                   (D.C. No. 02-CR-40-N)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before EBEL , ANDERSON , and McCONNELL , Circuit Judges.



      Joe Hightower was convicted by a jury and sentenced to a term of 319

months, plus 5 years’ probation. He appeals both conviction and sentence. In a

fifteen-count superseding indictment, he was charged with: 1) nine counts of

possession with intent to distribute more than five grams of cocaine base

(“crack”), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2;

2) one count of possession with intent to distribute an unspecified amount of a



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
mixture or substance containing a detectable amount of crack, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; 3) two counts of possession

with intent to distribute a substance and mixture containing a detectable amount

of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and

18 U.S.C. § 2; 4) one count of possession with intent to distribute more than 5

grams of a mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18

U.S.C. § 2; 5) one count of possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and 6) one count of

possession of a firearm by a previously convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2).

      In the proceedings below, the charge of felon in possession of a firearm

was severed from the remaining counts. Following his trial on the remaining

counts, the jury acquitted Mr. Hightower on the methamphetamine count and the

district court directed acquittal on the charge concerning using a firearm in

furtherance of drug trafficking. After the jury returned a verdict of guilty on the

remaining twelve counts, Mr. Hightower pled guilty to the count concerning

firearm possession by a felon.

      On appeal, Mr. Hightower challenges his conviction and sentence on four

separate grounds: 1) that he was deprived of his due process right to a jury of his



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peers because there were no African-Americans in the jury pool and the district

court did not allow additional jury voir dire to determine possible bias against

African-Americans; 2) that his due process rights were violated because he faced

a longer sentence for a crack offense, which, he argues, disparately subjects

African-Americans to harsher penalties; 3) that the district court erred in ruling

that it did not have the authority to downwardly depart based upon a Sentencing

Commission’s Report to Congress regarding the disparate effect of sentencing

guidelines for crack offenses on African-Americans; and 4) that the trial court

should have given him a downward departure for sentencing entrapment because

the agents who bought drugs from Hightower specifically asked to buy crack.

                                      Analysis

1.    Jury Voir Dire and Right to Jury of Peers

      Mr. Hightower contends that he was denied a trial by a jury of his peers and

that alleged racial bias deprived him of this right. During voir dire, Mr.

Hightower’s counsel made an oral objection that there were no African-

Americans in the jury pool and later, when asked if he would like to exercise any

peremptory challenges, he objected to the panel for “lack of diversity.” App. vol.

4, at 144. He also noted that the court asked no questions regarding “ethnicity.”

Id.




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      Mr. Hightower concedes that he has no challenge here under Batson v.

Kentucky, 476 U.S. 79 (1986). Appellant’s Br. 11. Aside from his general

complaint about lack of diversity among the venire, it seems from the briefs that

Mr. Hightower wanted questioning regarding his contention that the public

connects African-Americans and crack in a discriminatory manner and that the

trial court should have asked additional questions to ferret out those with such

preconceptions. Prior to voir dire proceedings, Mr. Hightower’s counsel tendered

the following questions:

      1.     If you were a black man charged with federal criminal
             offenses, and you saw that no other black citizens were seated
             on the jury to determine your guilt or innocence, would you
             feel confident that you would receive a fair trial?
      2.     What do you understand the term [sic] “crack” or “crack”
             cocaine to mean?
      3.     What have you heard about “crack” or “crack cocaine”?
      4.     Do you have any preconceived idea of whether any particular
             ethnic groups are associated with the use of “crack” or “crack
             cocaine”? What is that idea based upon?
      5.     Do you believe that if a person charged with a crime or crimes
             has been previously convicted of a criminal offense, that he or
             she is more likely to have committed the more recently charged
             offenses?
      6.     Do you believe that all of our drug laws are fairly written and
             fairly enforced? If not, why not?
      7.     Would you assign more or less believability to a person who
             has committed a crime but has received leniency from law
             enforcement in exchange for their cooperation to assist in the
             investigation and prosecution of others?
      8.     Would you assign more or less believability to a person who is
             being paid to assist law enforcement in the investigation and
             prosecution of others?



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Doc. 97, App. vol. 1.

      During voir dire, counsel for Mr. Hightower objected to the scope of

questioning, saying to the court: “I would also note for the record there have been

no questions on ethnicity.” App. vol. 4, at 144. The district court responded:

“And what question on ethnicity do you think I omitted?” Id. Counsel

responded: “I think there should be several. I think I tendered one, which was the

first question posed.” Id. From this, we gather that Mr. Hightower’s counsel was

referring to the first of his proposed voir dire questions enumerated above.

Following the exchange, the district court then asked the following question and

made the following determination:

             Members of the jury panel, the defendant is an African
      American. And the question is, since there are no African Americans
      on the panel, do each of you, looking within yourselves, have any
      doubt whatsoever that you could fairly and impartially judge the facts
      in this case?
             Is there anybody who has a doubt about your ability to do that?
             (No response.)
             All right. That’s all I’m going to ask.

Id. at 145.

      “[T]he scope of voir dire examination is a matter within the sound

discretion of the trial judge and will not be disturbed on appeal absent a clear

showing of abuse of discretion.” United States v. Madrigal, 43 F.3d 1367, 1372

(10th Cir. 1994). The Supreme Court has “delineated the circumstances that

mandate an inquiry into racial prejudice during voir dire. The Court held that a

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district court must make such an inquiry ‘only where the circumstances of the

case indicate that there is a reasonable possibility that racial or ethnic prejudice

might . . . influence[] the jury.’” Id. (quoting Rosales-Lopez v. United States, 451

U.S. 182, 191 (1981)). The Court in Rosales-Lopez found such an inquiry might

be merited in cases involving violent crimes where the victim and defendant were

of different races. Rosales-Lopez, 451 U.S. at 191-92. Here, there is no such

showing and the district court asked a clear question regarding impartiality.

Given the fact that the district court asked a specific question regarding racial

bias, and noting an absence of evidence in the record suggesting otherwise, we

find that there was no indication that racial or ethnic prejudice influenced the jury

in any way. In fact, if the voir dire had focused on a “connection” between crack

and African-Americans, it stands to reason that the defendant could make an

argument that those very questions would have prejudiced the jury against him.

As the Fourth Circuit has observed:

      to seek out generalized prejudices during the voir dire would quickly
      divert the trial’s focus from the guilt or innocence of the defendant to
      peripheral factors, such as the defendant’s race or religious beliefs,
      which are usually irrelevant to the merits of the case. The very
      process of exploring such factors would heighten their role in the
      decision making process and tend to subvert the court’s express
      admonition to jurors to convict or acquit only on the evidence before
      them without partiality to any party.




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United States v. Barber, 80 F.3d 964, 967-68 (4th Cir. 1996). With this concern

in mind, we cannot say that the district court abused its discretion by limiting voir

dire on the topic.

2.    Due Process Violation Due to Higher Penalties for Crack Distribution

      Although it is unclear from his brief whether Mr. Hightower is arguing that

the evidentiary basis for his conviction violated due process, that the statutory

sentencing enhancements for crack distribution violate due process, or that the

Sentencing Guidelines enhancements for crack distribution violate due process, he

advances some argument regarding each of these points. The Fifth Amendment to

the United States Constitution provides: “No person shall be . . . deprived of life,

liberty, or property without due process of law . . . .” U.S. Const. amend. V. We

review “de novo whether a violation of a defendant’s due process rights

occurred.” United States v. Walters, 269 F.3d 1207, 1215 (10th Cir. 2001).

      Prior to trial, Mr. Hightower filed papers styled as a motion for a bill of

particulars seeking the weight and chemical makeup of each of the substances that

served as the basis for the cocaine charges against him, and a motion for

discovery, to dismiss (due process) or, in the alternative to sentence under the

guidelines for cocaine hydrochloride and request for an evidentiary hearing.

Appellant’s Br. 13-14. The trial court denied these various motions, but did grant




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Mr. Hightower permission to have his own expert examine the drugs at court

expense.

      In the proceeding below and before this Court, Mr. Hightower took

exception to his conviction and sentence because the government’s witnesses

testified that crack was present in the substances that formed the basis for his

convictions for possession with intent to distribute of crack, but did not quantify

the ratio between crack and cocaine hydrochloride. Such quantification is not

required by statute. All that the statute requires is a “detectable amount” of the

prohibited substances to be in violation, and, for the crack enhancement to apply,

all that is required is that the substance or mixture contain cocaine hydrochloride

and crack. See 21 U.S.C § 841(b)(1)(A)(ii)-(iii), and (b)(1)(B)(ii)-(iii); see also

U.S.S.G. § 2D1.1(c), note (A).

      Prior to sentencing, Mr. Hightower filed a motion for downward departure,

on a similar due process theory, that he should not be sentenced under the

guidelines for crack offenses. See App. vol. 1, Doc. 168. Mr. Hightower argued

that a recent Sentencing Commission Report, which has not led to changes in the

sentencing guidelines for crack offenses, supports his contention that because a

substantial majority of those convicted of crack offenses are African American,

the guidelines for crack crime sentences violate due process and equal protection

principles. See id., exhibits B, C. He argues that because the sentences are



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harsher for crack offenses, the disparate sentencing liability between crack and

powder cocaine offenses violates his rights to due process and equal protection.

      We note that recommendations made by the Sentencing Commission to

Congress are not the law, and that Mr. Hightower was properly sentenced

according to the applicable statutory and sentencing guidelines. Mr. Hightower

makes the argument that these higher sentences for crack offenses are racially

biased and unfair, but cites to no persuasive authority to support a finding that

they violate his rights to due process or equal protection. This Court has

repeatedly held that the enhanced penalty scheme for offenses involving crack

versus powder cocaine violates neither due process nor equal protection

principles, and specifically that such possible disparate impact does not evidence

intentional discrimination. United States v. Williamson, 53 F.3d 1500, 1530 (10th

Cir. 1995). As such, the district court did not err in finding that Mr. Hightower’s

due process rights were not violated when he was convicted and sentenced for

crack distribution.

3.    The District Court’s Conclusion Not to Downwardly Depart Based on
      Sentencing Commission Report and Recommendation

      Mr. Hightower argues that due to the existence of the Report described

above, the district court erred in finding that it did not have the authority to

consider that report as a mitigating factor justifying a downward departure for

sentencing pursuant to U.S.S.G. §5K2.0. This Court reviews de novo a district

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court’s conclusion that it is without authority to grant a downward departure.

United States v. Maples, 95 F.3d 35, 37 (10th Cir. 1996). In Maples, we held that

such considerations are not proper in sentencing because such reports are not law.

Id. “In declining to depart downward based upon a proposed amendment to the

Sentencing Guidelines, the district court acted properly as it was bound by statute

to apply the existing Guidelines, policy statements and official commentary.” Id.

On the specific issue of mitigating factors under the Guidelines, the Maples court

also held that “the expansive issue of appropriate sentencing levels for crack

offenses is not the sort of discrete, individual and case-specific mitigating

circumstance justifying downward departure under 18 U.S.C. § 3553(b).” Id. at

37-8. The district court therefore did not err in finding that it did not have the

authority to downwardly depart based on the Sentencing Commission’s Report to

Congress.

4.    Sentencing Entrapment

      Mr. Hightower finally argues that the government engaged in “sentencing

entrapment” because the undercover agents who bought drugs from him asked

specifically for crack with full knowledge that he could also furnish other drugs

which carry less sentencing liability. The district court denied departure on this

ground, finding both that Mr. Hightower was predisposed to deal in crack, and




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that the government’s conduct in specifying that its informants purchase crack

was not outrageous. See App. Vol. 12 at 198-99. 1

      Sentencing entrapment claims are only entertained when there is the

probability that the government acted in an outrageous manner. United States v.

Lacey, 86 F.3d 956, 963 (10th Cir. 1996). Certain drug quantities may be

excluded from sentencing calculation if the defendant shows that the continuing

investigation which obtains higher and higher quantities is done in a manner that

“is so shocking, outrageous and intolerable that it offends ‘the universal sense of

justice.’” Id. (quoting United States v. Russell, 411 U.S. 423, 432 (1973). Putting

aside those things that might offend a “universal sense of justice,” here the

district court found that three significant purchases of crack did not amount to

outrageous conduct by government agents. We agree that, under such

circumstances, Mr. Hightower has not made a showing of sentencing entrapment

and affirm the decision of the district court not to depart downward.

      1
        The Government argues that because the record indicates that the district
court knew that it could have departed on a finding of sentencing entrapment, and
chose not to do so, this Court does not have the jurisdiction to review that
exercise of discretion. Ordinarily this is, indeed, the case. See, e.g., United
States v. Banta, 127 F.3d 982, 983 n.1 (10th Cir. 1997). Appellate review of a
district court’s denial of a requested departure is authorized only where the
district court rules “that it does not have any authority to depart from the
sentencing guidelines range for the entire class of circumstances proffered by the
defendant.” United States v. Castillo, 140 F.3d 874, 887 (10th Cir. 1998). Our
precedents indicate, however, that we have jurisdiction where, as here, an
appellant asserts that the government has illegally manipulated the sentencing
guidelines. See Lacey, 86 F.3d at 962 n.2.

                                        -11-
                                Conclusion

     For the reasons detailed above, we AFFIRM the conviction and sentence of

Mr. Hightower and DISMISS this appeal.

                                           Entered for the Court,

                                           Michael W. McConnell
                                           Circuit Judge




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