                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3411




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-3411


                          UNITED STATES OF AMERICA

                                          v.

                                 KEVON JACKSON,
                                   a/k/a FABIAN

                                                     Kevon Jackson,
                                                               Appellant


                    On Appeal from the United States District Court
                            for the District of New Jersey
                           D.C. Criminal No. 01-cr-00354
                          (Honorable Garrett E. Brown, Jr.)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                October 27, 2003
       Before: SCIRICA, Chief Judge, NYGAARD and AMBRO Circuit Judges

                             (Filed: November 14, 2003 )


                             OPINION OF THE COURT


SCIRICA, Chief Judge.

      Defendant Kevon Jackson appeals his conviction and sentence for conspiracy to

distribute more than 50 grams of “crack” cocaine and more than five grams of powder
cocaine, in violation of 21 U.S.C. § 846. Jackson argues the government failed to

demonstrate by a preponderance of the evidence that the controlled substance was crack

cocaine. Jackson also alleges the enhanced sentence for cocaine base containing baking

soda as opposed to ordinary cocaine base violates the Eighth Amendment. For reasons

that follow, we will affirm the conviction and sentence.

                                             I.

       Kevon Jackson was charged in a seven-count federal indictment for drug offenses.

Jackson pled guilty to Count One, conspiracy with intent to distribute in violation of 21

U.S.C.A. § 841(a)(1).

       The conspiracy involved six separate hand-to-hand cocaine sales, taking place

between November 14, 2000 and April 20, 2001. Drug Enforcement Administration

Special Agent Eric Brown, the case agent in the Jackson investigation, instructed a

cooperating witness to attempt to buy cocaine from Jackson. The cooperating witness,

who had a prior relationship with Jackson, purchased 8.9 grams of cocaine powder from

Jackson on November 14, 2000, a fact not in dispute.

       Agent Brown next instructed the cooperating witness to purchase either cocaine

hydrochloride or “crack” cocaine from Jackson.1 On January 18, 2001, the witness asked

Jackson for cocaine hydrochloride and asked if it would “cook up well” into crack.


   1
   “Crack” is 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. Sentencing Guideline § 2D1.1.

                                             2
Jackson replied, “If you’re worried about that, why don’t you just buy some crack.” The

cooperating witness bought 13.1 grams of a “yellow chunky powder substance” from

Jackson. The next four sales, two made on February 6, 2001 and one each on April 19,

2001 and April 20, 2001, also involved a “yellow chunky powder substance.”

       At a hearing, the District Court heard testimony and evidence to determine the

identity of the drugs sold by Jackson. The first government witness, Agent Brown,

established his expertise in identifying drugs by testifying that he had been involved in

approximately 100 investigations, approximately 50 of which involved crack cocaine, and

that he had personally seen crack cocaine about 150 times. He testified that he had

purchased crack cocaine as an undercover agent five times and had received government

training to be able to identify crack cocaine. Agent Brown then identified the substance

sold by Jackson to the corroborating witness in each of the five transactions as crack

cocaine.

       DEA forensic chemist Florence Wong also testified on behalf of the government.

Ms. Wong had analyzed all five non-powder samples of cocaine that the cooperating

witness purchased from Jackson, and testified that each sample contained both cocaine

base and sodium bicarbonate (baking powder).

       In rebuttal, Jackson offered the transcript of the testimony of chemist Warren

James Woodford in United States v. Ricqui Watkins, Cr. No. 00-415 (D.N.J. Jan. 17,

2002). Woodford had testified that cocaine base “is not crack,” and gave a brief history



                                             3
of the term “crack.” Not finding the transcript of Woodford’s testimony “helpful or

persuasive,” the District Court concluded that Jackson had made five sales of crack

cocaine during the course of the conspiracy and sentenced him to 168 months

imprisonment.

       Jackson contends the District Court erred in finding that his controlled substance

offense involved crack cocaine and in sentencing him under the Sentencing Guidelines’

crack cocaine enhancement provision. He also argues that enhanced punishment for

cocaine base with baking soda is irrational and violates the Eighth Amendment principle

of proportionality.

       We have jurisdiction under 18 U.S.C. § 1291. We review the District Court’s

finding that the cocaine base was crack cocaine for clear error, United States v. Fuentes,

954 F.2d 151, 152-53 (3d Cir. 1992), reversing “only if we are left with a definite and

firm conviction that a mistake has been made.” United States v. Dent, 149 F.3d 180, 189

(3d Cir. 1998). But we retain plenary review of issues of law raised by application of the

Sentencing Guidelines. United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997).

                                            II.

       When applying Section 2D1.1 of the Sentencing Guidelines, the government must

prove by a preponderance of the evidence that the substances in question were crack

cocaine. United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997). In this case, the

government presented the testimony of DEA Special Agent Brown and DEA Forensic



                                             4
Chemist Wong. Agent Brown identified the crack cocaine pursuant to his extensive

experience, while Ms. Wong identified the substance as “cocaine base,” which the

Sentencing Guidelines equate with “crack.” 2 This evidence is more compelling than

testimony that this Court has previously accepted in identifying crack cocaine. See

Roman, 121 F.3d at 141 (holding expert police testimony sufficient to identify crack

cocaine). We find no “clear error” here and hold that the government met its burden of

proof.

         Jackson next argues that the Sentencing Guidelines irrationally punish offenses

involving cocaine base with baking soda more severely than those involving cocaine base.

This distinction is inaccurate. The sentencing guidelines do not distinguish between

“cocaine base with baking soda” and “cocaine base.” Baking soda is used to dilute




   2
    Section 2D1.1 of the Sentencing Guidelines states that “[c]ocaine base, for the
purposes of this guideline, means ‘crack.’”
        Cocaine is generally imported into the United States in powder cocaine form
(cocaine hydrochloride), a salt with the chemical formula C 17 H 22 ClNO 4 . Users generally
ingest this form of cocaine by dissolving it in water and then injecting it, or snorting it.
Cocaine base has the chemical formula C 17 H 21 NO 4 ; it is generally melted and the vapors
are inhaled. United States v. Booker, 70 F.3d 488, 490-91 (7th Cir. 1995).
        There are two primary methods of converting powdered cocaine into cocaine base:
the crack cocaine method and the freebase cocaine method. The freebase method
involves dissolving powder cocaine in ammonia and adding ether or another organic
solvent. This process is dangerous, as the ether is flammable. Id. In the early 1980's a
much safer method for producing cocaine base developed, where powder cocaine is
dissolved in baking soda (sodium bicarbonate) and water, resulting in a pasty mixture. As
the pasty mixture dries, it makes a cracking sound, resulting in the street term “crack.” Id.
        The method for producing crack cocaine does not change its chemical structure, so
the substance cannot be distinguished from other cocaine bases through chemical testing.

                                              5
cocaine hydrochloride, and the resulting substance is commonly called “crack.” The

presence of sodium bicarbonate is thus a strong indicator that a substance is crack

cocaine. United States v. Waters, 313 F.3d 151, 155 (3d Cir. 2002).

       The sentencing guidelines punish crack cocaine more severely than cocaine

powder 3 to effectuate Congress’ intent. United States v. Frazier, 981 F.2d 92, 96 (3d Cir.

1992). 4 We have rejected a similar Eighth Amendment disproportionality claim in

Frazier, 981 F.2d at 95-96, as have other circuits, see United States v. Cyrus, 890 F.2d

1245, 1248 (D.C. Cir. 1989); United States v. Malone, 886 F.2d 1162, 1166 (9th Cir.

1989); United States v. Colbert, 894 F.2d 373, 374-75 (10th Cir. 1990). We similarly

reject this challenge.5



   3
    The punishment for a person convicted of a crack cocaine is not 100 times greater
than a similar offense involving cocaine powder, as Jackson implies. Instead, the
offender will receive a sentence between two and six and one-half times more severe than
the sentence of one convicted of trafficking the same amount of cocaine powder. United
States v. Spencer, 160 F.3d 413, 413 (7th Cir. 1998).
   4
    Congress has many reasonable grounds for differentiating between crack cocaine and
cocaine powder, due to differences in addictiveness, method of use, and collateral social
effects of the traffic in the drug. Id.
   5
    As the D.C. Circuit explained:
       There have been only three recognized instances of disproportionality rising to the
       level of an eighth amendment violation. These involved condemning a man to
       death for a non-homicide crime, imposing life without parole for a nonviolent
       recidivist who passed a bad check for $100, and sentencing a man in the
       Philippines to 15 years hard labor for falsifying a government form. A ten-year
       sentence for drug possession simply does not approach the same level of gross
       inequity.”
Cyrus, 890 F.2d at 1248.

                                             6
                                         III.

    For the foregoing reasons, we will affirm the judgment of the District Court.




TO THE CLERK:

           Please file the foregoing opinion.




                                                /s/ Anthony J. Scirica
                                                     Chief Judge




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