                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-1995

United States v Alton
Precedential or Non-Precedential:

Docket 94-3313




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Recommended Citation
"United States v Alton" (1995). 1995 Decisions. Paper 207.
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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                    No. 94-3313 and 94-3314



                    UNITED STATES OF AMERICA

                              Appellant

                                 v.

                DARNELL LEE ALTON; HOWARD SCOTT;
                    GINA LEWIS; ANGELA ALTON




         On Appeal from the United States District Court
            for the Western District of Pennsylvania
            (D.C. Criminal Action No. 92-cr-00257-1)




                                       Argued June 27, 1995

     Before: HUTCHINSON, ROTH and GARTH, Circuit Judges

                (Opinion Filed     August 4, 1995)




Frederick W. Thieman
United States Attorney
Paul J. Brysh (Argued)
Assistant U.S. Attorney
633 U.S. Post Office and Courthouse
Pittsburgh, PA 15219
            Attorneys for Appellant and Cross-Appellee

Gary B. Zimmerman, Esq. (argued)
Suite 620
312 Boulevard of the Allies
Pittsburgh, PA 15222
            Attorney for Appellee and Cross-Appellant




                            OPINION OF THE COURT



ROTH, Circuit Judge:



            Appellee     Darnell    Alton      was    one   of   four     individuals

charged in an indictment alleging various drug offenses.                        Count

One   charged    Alton   with     conspiracy     to    possess      and    distribute

cocaine and cocaine base ("crack cocaine"), in violation of 21

U.S.C. § 846; Count Two charged Alton with possession with intent

to    distribute   in    excess    of   five    grams       of   cocaine     base,   in

violation of 21 U.S.C. § 841(a)(1); Count Three charged Alton

with possession with the intent to distribute more than 500 grams

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

            Between 1990 and 1992, Alton was a heavy crack cocaine

trafficker in the Pittsburgh area.                   He employed a number of

people    who   cooked   cocaine    powder      into    crack,      stored    it, and

distributed it on the street.           On July 23, 1991, following a tip

from a confidential informant that Alton was in possession of a

large quantity of cocaine, which he was selling from his house,

police executed search warrants for Alton's person, residence,

and car. Crack cocaine was found on Alton's person and cocaine

powder and cash was found at Alton's residence.                   Three members of

Alton's    operation      testified      at     trial       about    Alton's     drug

transactions.
           Alton was found guilty at trial on Counts One and Two

but was acquitted on Count Three.                         At sentencing, the district

court   departed       downward         from        the    United     States   Sentencing

Guidelines ("Guidelines") range for cocaine base offenses and

imposed a ten-year term of imprisonment and a five-year term of

supervised        release.        The     Government          filed    this    appeal    to

challenge the district court's failure to follow the provisions

of the Guidelines as they apply to offenses involving cocaine

base.   Because we find that the district court erred in departing

downwards from the applicable guideline range, we will vacate the

sentence and remand for resentencing.0

                                           II.

                                               A.

          At       issue     in   this     case       are     the   provisions    of    the

Sentencing Guidelines (U.S.S.G. § 2D1.1) that impose more severe

sentences on those prosecuted for distribution or possession with

intent to distribute crack cocaine0 than on those prosecuted for

similar crimes involving cocaine powder.0                       The disparity in the
0
             On
              cross-appeal, Alton alleges that the Government
introduced evidence seized pursuant to a defective search
warrant, thereby violating his rights as guaranteed by the Fourth
Amendment to the United States Constitution.    We have reviewed
this claim and find it to be without merit.
0
          The Guidelines define cocaine base as "crack" -- "the
street name for a form of cocaine base, usually prepared by
processing cocaine hydrochloride and sodium bicarbonate, and
usually appearing in a lumpy, rocklike form." U.S.S.G. § 2D1.1,
Drug Quantity Table, footnote. We use the terms "cocaine base"
and   "crack  cocaine"   interchangeably  in   this   opinion  to
distinguish this form of cocaine from cocaine powder.
0
          This sentencing scheme applies to defendants convicted
of the offenses enumerated in 21 U.S.C. § 841(a), including
distribution or possession with intent to distribute controlled
substances, and those convicted of attempting or conspiring to
treatment of offenses involving the two substances originated in

congressional action.

          Pursuant to the Anti-Drug Abuse Act of 1986, Congress

established basic sentencing levels for crack cocaine offenses.

Congress amended 21 U.S.C. § 841 to provide for a 100:1 ratio in

the quantities of cocaine powder and crack cocaine that trigger

mandatory minimum penalties.      Amended 21 U.S.C. § 841(b)(1)(A)

establishes   a   mandatory   ten-year   term   of   imprisonment   for

offenses involving 5 kilograms of cocaine or 50 grams of cocaine

base.   And 21 U.S.C. § 841(b)(1)(B) provides for a mandatory

five-year term of imprisonment for offenses involving 500 grams

of cocaine or 5 grams of cocaine base.

          Based on those statutory provisions, the Drug Quantity

Table of U.S.S.G. § 2D1.1 treats any quantity of cocaine base as

the equivalent of 100 times the same quantity of cocaine powder.

Moreover, the Drug Equivalency Tables, U.S.S.G. § 2D1.1, pursuant

to which the penalty for an offense involving one controlled

substance is tied to or converted to the weight of an unrelated

controlled substance for sentencing purposes, equate one gram of

cocaine base to 20 kilograms of marijuana but one gram of cocaine

to 200 grams of marijuana.

                                  B.




commit those offenses, pursuant to 21 U.S.C. § 846. See United
States v. Frazier, 981 F.2d 92, 94 n.1 (3d Cir. 1992) (explaining
the sentencing scheme), cert. denied, 113 S. Ct. 1661 (1993),
cert. denied sub nom. Pettus v. United States, 113 S. Ct. 1662
(1993).
            Although   Alton     was    found   guilty    of     crack    cocaine

offenses, the district court departed downward from the sentence

range that the Guidelines prescribe for such offenses.                   The court

attributed    422.68   grams    of    crack   cocaine    and    235.5    grams    of

cocaine powder to Alton.        Pursuant to the Drug Equivalency Table,

U.S.S.G. § 2D1.1, the court converted the 422.68 grams of crack

cocaine to 8453.6 kilograms of marijuana and the 235.5 grams of

cocaine powder to 47.1 kilograms of marijuana, arriving at a

total of 8500.7 kilograms of marijuana, which corresponds to a

base offense level of 34.            The court added 4 levels to the base

offense level pursuant to U.S.S.G. § 3B1.1(a), based on Alton's

role   in   the   offense,     but    granted   a   3   point    reduction       for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.

            Thus, the court fixed the total offense level at 35,

which provides for a sentence range of 168-210 months.                   The court

granted a downward departure from that range based on 18 U.S.C.

§3553(b) and U.S.S.G. § 5K2.0,0 concluding that the Sentencing

Commission did not adequately consider a mitigating factor -- the

disparate impact that its policies would have on African-American

males -- when it developed guideline ranges for crack cocaine.0

0
             U.S.S.G. § 5K2.0 states:

          Under 18 U.S.C. § 3553(b) the sentencing court may
          impose a sentence outside the range established by the
          applicable guideline, if the court finds "that there
          exists an aggravating or mitigating circumstance of a
          kind, or to a degree, not adequately taken into
          consideration   by   the   Sentencing    Commission   in
          formulating the guidelines that should result in a
          sentence different from that described."
0
          The court adopted the reasoning of a district court
case that since has been vacated in relevant part.      See United
            In justifying the departure, the court further relied

on indications that Congress has reconsidered the rationality of

the 1 to 100 ratio.               Moreover, the court cited the 1993 annual

report    of    the        United      States        Sentencing        Commission,      which

indicates      that    for      the    period    from    October       1,    1992,   through

September 30, 1993, "95.1 percent of the offenders incarcerated

and subjected to the 1 to 100 ratio between crack and powdered

cocaine [were] either black or Hispanics."                      Appendix at 846, 872-

73.

            The court additionally discussed the Drug Equivalency

Tables,     U.S.S.G.        §    2D1.1.         The     court     concluded      that    the

conversion      of    one       gram   of   cocaine      base     to    20   kilograms    of

marijuana, pursuant to those tables, is arbitrary and capricious.

Citing Motor Vehicle Manufacturers Assoc. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29 (1983) as authority, the

court    elected      to    ignore     what     it    termed    the     "improper    agency

action" establishing the equivalency and to apply the mandatory

minimum sentence established by Congress for similar offenses

involving cocaine powder.

                                            III.

                                              A.

             21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) & (iii) are the

statutory provisions that establish a mandatory minimum ten year

penalty for offenses involving cocaine powder and crack cocaine.

States v. Majied, 1993 U.S. Dist. LEXIS 15156 (D. Neb. July 29,
1993), aff'd in part and vacated in part sub nom. United States
v. Maxwell, 25 F.3d 1389 (8th Cir.), cert. denied, 115 S. Ct. 610
(1994).
The statute provides a 100:1 ratio between the amounts of crack

cocaine and of cocaine powder which are required to activate the

minimum mandatory penalty.             Both parties acknowledge that the

statute is constitutional on its face.               However, the Government

challenges the district court's conclusion that the guideline

treatment of crack cocaine offenses is arbitrary and capricious.

Moreover, the Government challenges the district court's downward

departure    from    the    Guidelines     based    on    the   disproportionate

impact of the severe penalties for crack cocaine offenses on

African-Americans.

                                         B.

             The district court held that the Sentencing Commission

acted in an arbitrary and capricious manner by providing for the

conversion    of    one    gram   of   cocaine     base   to    20    kilograms   of

marijuana     for    sentencing        purposes,    pursuant         to   the   Drug

Equivalency Tables in U.S.S.G. § 2D1.1.              The court concluded that

the   Sentencing     Commission        violated    the    informal        rulemaking

procedures of the Administrative Procedures Act, 5 U.S.C. § 553,

and that the guideline provisions under which Alton was sentenced

are therefore void.0
0
The parties did not raise, this Circuit has not decided, and we
accordingly do not address, the issue of whether or not the
Sentencing Commission, as an entity within the judicial branch,
is an agency which is subject to the provisions of the APA. See
Washington Legal Found. v. U.S. Sentencing Com'n, 17 F.3d 1446,
1450 (D.C.Cir. 1994) (Commission not subject to the provisions of
the APA except as specifically enumerated). However, Congress did
specifically provide in 28 U.S.C. § 994(x) that promulgation of
the Guidelines by the Sentencing Commission would be subject to
the rulemaking provisions of § 553 of the APA. See, e.g., United
States v. Mistretta, 488 U.S. 361, 394 (1989) ("In contrast to a
court, [the Commission's] rule-making is subject to the notice
          In Motor Vehicle Manufacturers Assoc. v. State Farm

Mutual Automobile Insurance Co., 463 U.S. at 43, the Supreme

Court held that an agency adopting a rule pursuant to informal

rulemaking procedures "must examine the relevant data and

articulate a satisfactory explanation for its action including a

`rational connection between the facts found and the choice

made.'"   The Commission provides such an explanation for the

challenged Guideline provisions in U.S.S.G. § 2D1.1, comment 10,

which states that the Commission "used the sentences provided in,

and equivalences derived from, the statute (21 U.S.C. §

841(b)(1)) as the primary basis for the Guideline sentences."

           As the district court held, 21 U.S.C. § 841(b)(1) does

not equate crack cocaine to another controlled substance or

authorize the use of an equivalency table pursuant to which the

penalty for an offense involving one controlled substance is tied

to or converted to the weight of an unrelated controlled

substance. Nonetheless, the statute does establish the 100:1

ratio of cocaine powder to crack cocaine.   The same ratio is

reflected in the Drug Equivalency Tables, pursuant to which 1

gram of cocaine is equivalent to 200 grams of marijuana and 1

gram of crack cocaine is equivalent to 20 kilograms of marijuana.

The Commission established drug equivalences as "a means for

combining differing controlled substances to obtain a single

offense level."   U.S.S.G. § 2D1.1, comment 10.   Clearly the


and comment requirements of the [APA].") The parties to this
appeal have agreed that the standard to be applied is "arbitrary
and capricious."
Commission looked to the statute as a guide in formulating the

equivalences.   The statute in turn was based on Congress's

consideration of available data on the two forms of cocaine.

          We have upheld 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 involving an equal quantity

of cocaine powder.   See United States v. Frazier, 981 F.2d at 92

(holding that distinctions between crack cocaine and cocaine

powder for sentencing purposes do not constitute an equal

protection violation and that the 100:1 ratio does not constitute

cruel and unusual punishment); United States v. Jones, 979 F.2d

317 (3d Cir. 1992) (holding guideline provisions imposing higher

offense levels for offenses involving crack cocaine not to be

unconstitutionally vague).

          In United States v. Frazier, we explicitly rejected an

equal protection challenge to the relevant statutory and

guideline procedures.   We first observed that the statutes and

guidelines do not on their face classify defendants by race.

Next, we determined that the provisions do not employ a facially

"non-racial characteristic that strongly correlates with race for

cultural or socioeconomic reasons as a sham disguising invidious

racial classification."   Frazier, 981 F.2d at 95 (citing Yick Wo
v. Hopkins, 118 U.S. 356 (1886)).   We concluded that there was

"no evidence whatsoever that suggests that the distinction drawn

between cocaine base and cocaine was motivated by any racial

animus or discriminatory intent on the part of either Congress or
the Sentencing Commission."   Id.   We held that absent such an

explicit or inferable discriminatory purpose, the statutory

distinction between cocaine base and cocaine is subject to

rational basis review, which it withstands.0   Id.

          In rejecting constitutional challenges to the

distinction between cocaine base and cocaine powder in the

federal sentencing scheme, courts have consistently found that

Congress had a rational basis for treating offenses involving the

two substances differently.   In Jones, 979 F.2d at 320, we

emphasized the chemical differences between crack cocaine and

cocaine powder, concluding that "the Sentencing Guidelines have a

reasonable basis to differentiate between cocaine base and

cocaine salt."   Moreover, other courts have emphasized the

potency of crack cocaine, "the ease with which drug dealers can

carry and conceal it, the highly addictive nature of the drug,

and the violence which often accompanies trade in it."    United



0
          The Jones and Frazier decisions appear to be in accord
with the decisions of other federal courts of appeals. These
federal courts have uniformly upheld the statutory and guideline
penalties for crack cocaine offenses against due process, equal
protection, and cruel and unusual punishment claims. See, e.g.,
United States v. Byse, 28 F.3d 1165 (11th Cir. 1994) (equal
protection challenge), cert. denied, 115 S. Ct. 767 (1995);
United States v. Coleman, 24 F.3d 37 (9th Cir.) (equal protection
challenge), cert. denied, 115 S. Ct. 261 (1994); United States v.
Fisher, 22 F.3d 574 (5th Cir. 1994) (Eighth Amendment challenge),
cert. denied sub nom. Dunkins v. United States, 115 S. Ct. 529
(1994), ; United States v. Palacio, 4 F.3d 150 (2d Cir. 1993)
(due process challenge), cert. denied, 114 S. Ct. 1194 (1994);
United States v. Easter, 981 F.2d 1549 (10th Cir. 1992) (due
process and equal protection challenge), cert. denied, 113 S. Ct.
2448 (1993); United States v. Avant, 907 F.2d 623 (6th Cir. 1990)
(vagueness and Eighth Amendment challenge).
States v. Lattimore, 974 F.2d 971, 975 (8th Cir. 1992), cert.

denied, 113 S. Ct. 1819 (1993).0

            We conclude, therefore, that no "improper" agency

action was involved in the Sentencing Commission's establishment

of the Equivalency Tables, at least insofar as we are involved

here with the 100:1 ratio between crack cocaine and cocaine

powder.

                                            C.

            We next address the Government's contention that the

district court erred in concluding that 18 U.S.C. § 3553(b) and

U.S.S.G.    §    5K2.0      authorize       a    downward    departure     from    the

applicable guideline range on the grounds that the Sentencing

Commission did not adequately consider the disparate impact that

its   policies      would    have   on      African-American       males    when    it

developed guideline ranges for crack cocaine offenses.

            As set forth above, U.S.S.G. § 5K2.0 adopts the mandate

of 18 U.S.C. § 3553(b), stating that a sentencing court may

impose a sentence outside the range established by the applicable

guideline    upon    finding     the     existence      of   "an   aggravating      or

mitigating circumstance of a kind, or to a degree, not adequately

taken     into   consideration         by       the   Sentencing   Commission       in




0
          See also United States v. Lawrence, 951 F.2d 751 (7th
Cir. 1991) (holding that the penalty scheme "evinces a rational
purpose and does not violate the Due Process clause"); United
States v. Buckner, 894 F.2d 975 (8th Cir. 1990) (concluding that
the 100:1 ratio is rationally related to the congressional
objective of protecting public welfare).
formulating       the   guidelines    that      should      result    in    a    sentence

different from that described."            U.S.S.G. § 5K2.0.

            In Frazier, we held that even assuming the appellants'

claim that "a very high percentage of defendants convicted for

cocaine base offenses are black, while defendants convicted for

cocaine    offenses      are   more   likely     to    be    white,"       such    racial

disparities are insufficient to establish that U.S.S.G. § 2D1.1

violates    the    equal   protection      clause.          We    held   that "[e]ven

conscious awareness on the part of the legislature that the law

will have a racially disparate impact does not invalidate an

otherwise valid law," provided that such awareness does not play

a causal role in the statute's passage.                Frazier, 981 F.2d at 95.

            Although the issue here is not whether the relevant

guideline provisions are invalid on the grounds of disparate

impact but only whether a downward departure is warranted, the

reasoning of Frazier is instructive.                  Moreover, every appellate

court that has considered the matter has held that the impact of

the guideline treatment of crack cocaine is not a proper ground

for   downward     departures    from     the    applicable        guideline       range.

These     courts    have   rejected       defendants'        arguments          that   the

continued     enforcement,       rather      than     the        enactment,       of   the

challenged sentencing provisions is unconstitutional.0




0
          See, e.g., United States v. Maxwell, 25 F.3d 1389 (8th
Cir.), cert. denied, 115 S. Ct. 610 (1994); United States v.
Bynum, 3 F.3d 769 (4th Cir. 1993), cert. denied, 114 S. Ct. 1105
(1994); United States v. Lattimore, 974 F.2d at 971; United
States v. Haynes, 985 F.2d 65 (2d Cir. 1993).
            In United States v. Bynum, 3 F.3d at 774-75, the Fourth

Circuit rejected the defendant's argument that the Sentencing

Commission's alleged failure to consider the disparate impact on

African-Americans of the 100:1 powder-to-crack ratio constitutes

a ground for a downward departure.          The court reasoned that a

showing that the Commission failed to take a factor into account

cannot suffice to justify a downward departure.              Indeed, the

court explained, "[f]rom the countless factors that constitute

the human experience, the Commission necessarily considered only

a few.    Any defendant can identify something about himself that

the guidelines do not address."          Id. at 774.       Therefore, the

court emphasized, the factor alleged not to have been considered

must also be a factor for which a sentence outside the guidelines

"should result."      Id.

            Observing that the proposed mitigating circumstance in

Bynum rested on membership in a class rather than on a factor

personal to the defendant, the court held that the guidelines'

failure to address the impact of a provision on a class should

result in a class-wide downward departure "only when failure to

provide it would deprive the class of equal protection."            Id. at
775.     Thus, the court rejected the "extraordinary relief" that

the defendant requested on the grounds that the 100:1 powder-to-

crack ratio was not enacted pursuant to a discriminatory purpose

and thus did not violate the constitutional principle of equal

protection. Id.; see also Maxwell, 25 F.3d at 1401 (adopting the

Fourth    Circuit's   reasoning   and   stating   that   allowing   such   a
class-wide departure would "impede Congress's policy decision to

treat cocaine base more harshly than powder cocaine").

           Alton     has    not    established     facts       or     circumstances

peculiar   to     himself   or    his   offense   that    justify       a     downward

departure.       He justifies departure from the guidelines solely on

the overall impact of the guidelines, a factor present in all

crack cocaine cases.        Such a departure cannot be reconciled with

the language of the guidelines.

           Indeed the reasoning of Bynum and other cases in which

courts have refused to affirm downward departures based on the

disparate impact of the crack cocaine sentencing scheme rests

squarely on the language of the guidelines.                    The Commentary to

U.S.S.G.     §    5K2.0     states      that   "[i]n     the        absence     of    a

characteristic      or    circumstance     that   distinguishes         a     case   as

sufficiently atypical to warrant a sentence different from that

called for under the guidelines, a sentence outside the guideline

range is not authorized."          The Commission likewise addresses the

subject of departures in the Introduction to Chapter One of the

Guidelines, stating:
          The Commission intends the sentencing courts to treat
          each guideline as carving out a "heartland," a set of
          typical cases embodying the conduct that each guideline
          describes. When a court finds an atypical case, one to
          which a particular guideline linguistically applies but
          where conduct significantly differs from the norm, the
          court may consider whether a departure is warranted.


U.S.S.G. Manual, Ch.1, Part A4(b).                The Commission noted its

expectation "that despite the courts' legal freedom to depart

from the guidelines, they will not do so very often."                    Id.
                                 IV.

           We limit our decision to holding that the disparate

impact of the severe penalties for crack cocaine offenses on

African-Americans is not a valid ground for departure from the

guideline ranges for crack cocaine offenses.                Accordingly, we

vacate   the   sentence    and   remand     for   resentencing   within    the

applicable     guideline   ranges.     We    defer   to   Congress   and   the

Sentencing Commission to address the related policy issues and to

consider the wisdom of retaining the present sentencing scheme.
