                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-4234
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

CARL EDWARDS,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 02 CR 1047—Milton I. Shadur, Judge.
                          ____________
ARGUED SEPTEMBER 30, 2004—DECIDED FEBRUARY 11, 2005
                   ____________


  Before ROVNER, WOOD, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. All crack is cocaine base but not all
cocaine base is crack. This case presents the question of
whether this distinction is meaningful for purposes of the
enhanced penalties for cocaine base offenses under
21 U.S.C. § 841(b). The statute prescribes a mandatory
minimum sentence of ten years for the manufacture,
distribution, or possession with intent to manufacture
or distribute 50 grams or more of “cocaine base.” 21 U.S.C.
§ 841(b)(1)(A)(iii). The federal Sentencing Guidelines also
call for increased penalties, in the form of heightened
base offense levels, for crimes involving “cocaine base.”
See U.S.S.G. § 2D1.1(c). But while the Guidelines define
“cocaine base” as “crack” for purposes of the higher pen-
2                                                   No. 03-4234

alties, see U.S.S.G. § 2D1.1(c), Note (D), the statute contains
no such limiting definition. The question in this case is
whether the mandatory minimum sentence in the statute
applies, like the Guidelines, to crack offenses only.
  We have addressed a variation of this question before,
although in a case that arose before the Guidelines were
amended to specifically define “cocaine base” as “crack”
for purposes of the higher Guidelines penalties. In United
States v. Booker, 70 F.3d 488, 494 (7th Cir. 1995),1 we held
that because “Congress and the Sentencing Commission
intended ‘cocaine base’ to mean crack cocaine,” the en-
hanced penalties in § 841(b) and the Guidelines “apply
to crack cocaine, and the lesser penalties apply to all
other forms of cocaine.” We reiterated this holding in
United States v. Reddrick, 90 F.3d 1276, 1282 (7th Cir.
1996), and also referred to it in three subsequent cases
applying the amended guideline definition which limits
the applicability of the higher Guidelines penalties to
offenses involving only the subset of “cocaine base” that
constitutes “crack.” See United States v. Earnest, 129 F.3d
906, 915-16 (7th Cir. 1997); United States v. Adams, 125
F.3d 586, 591-92 (7th Cir. 1997); United States v. Hall, 109
F.3d 1227, 1236 (7th Cir. 1997).
    A footnote in Adams led the district court in this case


1
   Not to be confused with a more recent case from this circuit by
the same name, United States v. Booker, 375 F.3d 508 (7th Cir.
2004), just affirmed by the United States Supreme Court, United
States v. Booker, 543 U.S. ___, 2005 WL 50108 (January 12, 2005),
which applied the rule of Blakely v. Washington, 124 S.Ct. 2531
(2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to the
federal Sentencing Guidelines and found a Sixth Amendment
violation. As a remedy, the Court severed and excised from the
Sentencing Reform Act of 1984 the provision making the Guide-
lines mandatory, 18 U.S.C. § 3553(b)(1), effectively rendering the
Guidelines advisory. Booker, 2005 WL 50108, at *16.
No. 03-4234                                               3

to conclude that Booker notwithstanding, the applicabil-
ity of the statutory ten-year minimum sentence to an
offense involving “cocaine base” that is not “crack” is an
open question in this circuit. United States v. Edwards, 294
F. Supp. 2d 954, 959-60 (N.D. Ill. 2003). Looking elsewhere
for guidance, the court adopted the reasoning of United
States v. Barbosa, 271 F.3d 438, 467 (3d Cir. 2001), in
which the Third Circuit held that Congress intended the
mandatory minimum sentence to apply to offenses involving
any form of cocaine base, whether crack or not. Edwards,
294 F. Supp. 2d at 960. The district court found that the
controlled substance in this case was not “crack” but was
“cocaine base” and on that basis imposed the mandatory
ten-year sentence. Id.
  We reverse. Booker held that for purposes of the enhanced
penalties in the Guidelines and the statutes “cocaine base”
means “crack cocaine.” Booker, 70 F.3d at 489-90, 494. That
holding controls here, and we decline to revisit it. We note
a substantial divergence among the circuits on this issue.
Some circuits, like this one, have equated the statutory
term “cocaine base” to “crack.” Some have held that any
form of “cocaine base” qualifies for the mandatory minimum
sentence. Others have adopted a hybrid approach that
includes any smokable form of cocaine base within the
statutory term—including, but apparently not limited to,
crack. See Part II, infra.


                     I. Background
  Carl Edwards was indicted on two counts of possession
with intent to distribute more than 50 grams of a substance
containing cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). Edwards offered pleas of guilty while reserv-
ing his right to contest the nature of the substances in-
volved; he admitted they contained cocaine but denied
it was either cocaine base or crack. The district court
4                                                No. 03-4234

held that Edwards’ pleas were knowing and voluntary
but deferred accepting them to avoid triggering Edwards’
immediate detention and to await determination of the
nature of the substance at an evidentiary hearing. Ed-
wards, 294 F. Supp. 2d at 955-56.
  At the subsequent hearing the government’s expert, Dr.
James DeFrancesco, testified that on the basis of laboratory
testing, the substances in Edwards’ possession were cocaine
base. He opined further that the substances were crack
cocaine, basing this conclusion not on scientific tests or
expert examination but on the definition in the Sentencing
Guidelines, which reads:
    “Cocaine base,” for the purposes of this guideline, means
    “crack.” “Crack” is the street name for a form of cocaine
    base, usually prepared by processing cocaine hydrochlo-
    ride and sodium bicarbonate, and usually appearing
    in a lumpy, rocklike form.
U.S.S.G. § 2D1.1(c), Note (D). Because DeFrancesco relied
exclusively on the legal definition of “cocaine base” rather
than scientific evidence, the district court rejected his
conclusion that the substances Edwards possessed were
crack. Id. at 957.
  Edwards’ expert, Dr. Michael Evans, agreed with Dr.
DeFrancesco that the substances were cocaine base in the
chemical sense but testified that they did not constitute
crack. His laboratory tests revealed none of the telltale
signs of crack; among other things, the substances did
not exhibit the color or form that results from the process of
mixing cocaine hydrochloride (powder cocaine) with sodium
bicarbonate to produce crack. The district court accepted
Dr. Evans’ conclusions and found by a preponderance of the
evidence that the substances in Edwards’ possession were
No. 03-4234                                                    5

a noncrack form of cocaine base.2 Id. at 958.
  To determine Edwards’ sentence, the court turned first to
§ 2D1.1(c) of the Guidelines, the Drug Quantity Table,
which specifies that the base level for an offense involving a
quantity of cocaine base is the same as for an
offense involving 100 times that quantity of cocaine. Id.; see
also Booker, 70 F.3d at 489. Pursuant to the Guidelines
definition quoted above, however, only crack is subjected to
the heightened penalties; forms of cocaine base other than
crack are sentenced like other forms of cocaine, most
notably, powder cocaine. Under the Guidelines an of-
fense involving just over 100 grams of cocaine yields a
base offense level of 16, which in light of Edwards’ criminal
history results in a sentencing range of 24-30 months.
  The statutory minimum sentence for “cocaine base,”
however, is ten years, 21 U.S.C. § 841(b)(1)(A)(iii), and
it takes precedence. United States v. Schaefer, 107 F.3d
1280, 1285 (7th Cir. 1997); U.S.S.G. § 5G1.1(b). Relying
on the Third Circuit’s decision in Barbosa, the district court
concluded that the statutory mandatory minimum applies
to all forms of cocaine base, not just crack, and imposed two
concurrent ten-year terms of imprisonment.


2
  Although the district court briefly discussed Apprendi in its
decision in this case, see United States v. Edwards, 294 F. Supp.
2d at 956, no argument under Apprendi or Blakely has been made
on appeal. The Supreme Court has held that the Apprendi rule
does not extend to statutory minimum penalties. See Harris v.
United States, 536 U.S. 545, 566-68 (2002) (plurality opinion of
Justice Kennedy reaffirming McMillan v. Pennsylvania, 477 U.S.
79 (1986), and finding it distinguishable from Apprendi)
and Harris, 536 U.S. at 569-70 (concurring opinion of Justice
Breyer disagreeing that Apprendi and McMillan are distinguish-
able but joining the plurality “to the extent that it holds that
Apprendi does not apply to mandatory minimums”). See also
United States v. Souffront, 338 F.3d 809, 827 (7th Cir. 2003).
6                                                No. 03-4234

                      II. Discussion
  Congress enacted the mandatory minimum sentence
for cocaine base in 1986 as part of the Anti-Drug Abuse Act.
See Pub. L. 99-570, § 1002(2) (Oct. 27, 1986). The statute
does not define “cocaine base.” Prior to 1993, § 2D1.1(c) of
the Guidelines, like the statute, also contained no definition
of “cocaine base.” In 1993, however, the Sentencing Com-
mission amended § 2D1.1(c) to define cocaine base as
“crack” for Guidelines sentencing purposes. See 58 Fed. Reg.
27148, 27156 (May 6, 1993). The definition took effect
November 1, 1993. Booker was decided after the new
definition took effect, but Booker’s conviction related to
events predating the amendment’s effective date, so the
court applied the earlier version of the Guidelines. Booker,
70 F.3d at 489-90 n.3.
  The defendant in Booker argued that the sentencing
provisions in § 841(b) and the Guidelines differentiating
between “cocaine” and “cocaine base” were ambiguous (and
therefore the rule of lenity should apply) because in chemi-
cal terms “cocaine” and “cocaine base” are identical. Booker,
70 F.3d at 489. Cocaine in its natural state is a base;
“cocaine” and “cocaine base” thus have the same chemical
formula, C17H21NO4. Id. at 490. We noted in Booker that
most cocaine imported into this country is first converted
into cocaine hydrochloride (cocaine salt), having the
chemical formula C17H22ClNO4, and commonly referred to as
powder cocaine. Id. at 490-91.
  Powder cocaine can be converted back into base co-
caine by a process that “frees” the base from the hydro-
chloride. Id. at 491. Cocaine “freebase,” popular in the
1970s, is produced by mixing cocaine hydrochloride
with ammonia and ether or another organic solvent. Id.
“Crack” is the street name for another form of freebase
cocaine, produced by mixing cocaine hydrochloride with
baking soda and water, boiling the mixture until only a
No. 03-4234                                                  7

solid substance is left, and allowing it to dry, resulting in a
rocklike substance. Id. Smokable and therefore more potent
than ordinary powder cocaine, crack rivals freebase cocaine
in terms of its potency while avoiding the hazards of
freebasing, which requires the use of flammable ether. Id.
Freed of the hydrochloride, the cocaine returns to its base
form—whether in the physical form of crack
or otherwise—and is again chemically identical to “cocaine.”
Thus, the question of statutory ambiguity arose: although
“cocaine base” and “cocaine” are scientifically synonymous,
§ 841(b) assigns enhanced penalties to offenses involving 50
grams or more of “cocaine base” but requires 5 kilograms or
more (a 100:1 ratio) of “cocaine” or “its salts” to trigger the
enhanced penalties. Id.
  We held in Booker that despite the chemical identity
between cocaine and cocaine base, “the legislative history of
§ 841(b) demonstrates that Congress intended the terms to
have different meanings.” Id. at 492. We acknowledged the
probable ambiguity if the statutory text alone were consid-
ered, given that the same penalty applied to 5 kilograms of
“cocaine,” § 841(b)(1)(A)(ii), as 50 grams of “cocaine base,”
§ 841(b)(1)(A)(iii), although the two are chemically the
same. Id. at 492. Canvassing the legislative history, we
concluded that the overriding Congressional concern behind
the stiffer penalties for cocaine base was the alarming rise
in the use of crack, “a new, smokable form of cocaine that
was more dangerous than powder cocaine, less expensive,
and highly addictive.” Id. at 492-94. We noted the ongoing
debate over whether the dangers of crack justified the size
of the sentencing differential, id. at 494, but concluded that
“whatever the merits of the distinction, it is clear that
Congress intended the enhanced penalties to apply to crack
cocaine and the lesser penalties to apply to all other forms
of cocaine.” Id. The Sentencing Commission, we said, was
similarly motivated. Id. Accordingly, we held in Booker that
“the sentencing provisions for ‘cocaine’ and ‘cocaine base’
8                                                No. 03-4234

are not ambiguous because although the terms have the
same scientific meaning, both Congress and the Sentencing
Commission intended ‘cocaine base’ to mean crack cocaine.”
Id.
  Unlike this case, there was never any dispute in Booker
that the substance at issue was crack, so the precise
question confronting us here was not present there.
We reiterated Booker’s holding in Reddrick, 90 F.3d at
1282, but Reddrick raised a Guidelines issue only and did
not address the statute’s mandatory minimum sentence. We
also cited Booker in three cases addressing the 1993
amendment to the Guidelines that defined “cocaine base” as
“crack” for purposes of Guidelines sentencing. See Earnest,
129 F.3d at 916-17; Adams, 125 F.3d at 592; Hall, 109 F.3d
at 1236. Hall unequivocally states that Booker defined
“cocaine base” as “crack” for purposes of § 841. Hall, 109
F.3d at 1236. Even so, none of these cases raised the
specific issue of the mandatory minimum sentence in §
841(b).
   A footnote in Adams took note of United States v. Munoz-
Realpe, 21 F.3d 375 (11th Cir. 1994), in which the Eleventh
Circuit held that the term “cocaine base” in a parallel
mandatory minimum statute, 21 U.S.C. § 960(b), must
be interpreted consistently with the Guidelines defini-
tion. See Adams, 125 F.3d at 591 n.4. Munoz-Realpe
reasoned that by allowing the Guidelines amendment to
take effect, “Congress has given its imprimatur to the
new definition of ‘cocaine base’ ” for purposes of the stat-
ute. Munoz-Realpe, 21 F.3d at 377. We noted in Adams
the existence of a circuit split on the scope of the term
“cocaine base” for purposes of the statutory minimums
but declined to take a position: “The interpretation of
‘cocaine base’ within 21 U.S.C. § 960(b) is not at issue in the
present case and we decline to express any opinion on that
issue.” Adams, 125 F.3d at 591 n.4.
No. 03-4234                                                 9

  Because the language of § 841(b) is identical to
§ 960(b)—the latter applies to cocaine importation of-
fenses—the district court in this case read the Adams
footnote to mean that this court had reserved ruling on the
interpretation of “cocaine base” for statutory, as opposed to
Guidelines, purposes. Edwards, 294 F. Supp. 2d at 960. The
district court acknowledged, however, that the situation
was “a bit muddied” because our earlier decision in Booker
addressed the interpretation of the term in both contexts.
Id. at 959. In any event, the district court determined that
in light of the statement in Adams, “it must deal with the
statutory question as one of first impression in our Circuit,”
id. at 960, and adopted the reasoning of Barbosa. There, the
Third Circuit held that “while the term ‘cocaine base’ means
only crack when a sentence is imposed under the Sentenc-
ing Guidelines, ‘cocaine base’ encompasses all forms of
cocaine base with the same chemical formula when the
mandatory minimum sentences under 21 U.S.C. § 841(b)(1)
are implicated.” Barbosa, 271 F.3d at 467.
  We regret that the footnote in Adams may have misled
the district court to conclude that Booker is no longer good
law on the meaning of “cocaine base” in 21 U.S.C. § 841(b).
The analysis in Booker was not limited to the use of the
term “cocaine base” in the Guidelines. Booker interpreted
both the statute and the pre-1993 guideline, with a nod
of recognition to the post-1993 guideline definition.
Booker held that the enhanced penalties for cocaine base in
the Guidelines and the statutes “apply to crack cocaine, and
the lesser penalties apply to all other forms of cocaine.”
Booker, 70 F.3d at 494. That holding remains the law in
this circuit.
  Indeed, based on Booker, the government initially con-
fessed error in this case but at our request briefed the
statutory interpretation question. We are not persuaded
that Booker was wrongly decided. If any form of cocaine
10                                              No. 03-4234

base (not just crack) qualifies for the enhanced penalties in
the statute, then subsection (iii) swallows subsection (ii),
because “cocaine base” (subsection (iii)) is chemically the
same as “cocaine” (subsection (ii)).
  We acknowledge a significant division among the cir-
cuits on this issue, with no clear majority rule and at
least three distinct approaches. Some circuits have held,
like Booker, that the mandatory minimum sentence
under the statute applies only to crack, based in whole or in
part on the legislative history of the 1986 Anti-Drug Abuse
Act. See United States v. Fisher, 58 F.3d 96, 99 (4th Cir.
1995) (relying on analysis of statutory language as well as
legislative history); United States v. Crawford, 83 F.3d 964,
965 (8th Cir. 1996) (agreeing with analysis of legislative
history in Booker). As we have discussed, the Eleventh
Circuit reached the same conclusion by a different route in
Munoz-Realpe, holding that by allowing the amended
definition in the Guidelines to take effect, Congress ap-
proved the new “crack only” definition for purposes of the
statute as well. Munoz-Realpe, 21 F.3d at 377.
   The Sixth Circuit in United States v. Levy, 904 F.2d 1026
(6th Cir. 1990), appears to have reached the conclusion that
“cocaine base” in the statute means crack (“Levy recognizes
the congressional intent behind the insertion of the phrase
‘cocaine base’ was to impose stiffer sentences upon those
who traffic in crack cocaine,” id. at 1033), but the court
simply assumed that cocaine base and crack are equivalent
in all senses.
  The Ninth Circuit has limited the term “cocaine base” to
“cocaine that can be smoked,” which includes but might not
be limited to crack (the court’s opinion was unclear on this
point). United States v. Shaw, 936 F.2d 412, 415-16 (9th
Cir. 1991) (relying on legislative history). The District of
Columbia Circuit has rejected the argument that the term
“cocaine base” should be read literally to include anything
No. 03-4234                                               11

that chemically constitutes base cocaine, but has declined
to adopt the “crack only” definition. United States v.
Brisbane, 367 F.3d 910, 913-14 (D.C. Cir. 2004). The court
in Brisbane reviewed the legislative history of the statute
and found “much evidence” that Congress “was targeting
crack,” but at the same time found it “unlikely [that]
Congress intended to limit the enhanced penalty provision
to one manufacturing method.” Id. at 913. The court cited
Shaw with approval, finding merit to its interpretation that
“ ‘cocaine base’ means any cocaine that is smokable.” Id. at
914 (“The Ninth Circuit’s approach avoids the difficulties
inherent in the ‘literal’ approach while not unduly narrow-
ing the operation of the statute.”). In the end, however, the
Brisbane court concluded that it “need not choose between
the two options because both lead to the same result. Here
the government did not prove that the substance distrib-
uted was smokable and it did not prove that it was crack.”
Id.
  Other circuits are diametrically opposed to Booker. The
Second Circuit acknowledged that in passing the mandatory
minimum sentence for cocaine base Congress was concerned
with the problem of crack. United States v. Jackson, 968
F.2d 158, 162 (2d Cir. 1992). But the court concluded that
by using the chemical name, cocaine base, rather than the
colloquial name, crack, Congress intended not to limit
application of the enhanced penalties to crack alone, and
nothing in the legislative history dispelled that plain-
language reading. Id. In Barbosa, the opinion adopted by
the district court here, the Third Circuit held that passage
of the 1993 guideline amendment did nothing to cast doubt
on the plain meaning of the statutory text, which does not
limit cocaine base to the form known as crack. Barbosa, 271
F.3d at 466-67. The Fifth Circuit has held that the term
“cocaine base” in § 841(b) encompasses noncrack forms of
cocaine base. United States v. Butler, 988 F.2d 537, 542-43
(5th Cir. 1993). The Tenth Circuit has adopted the Second
12                                               No. 03-4234

Circuit’s conclusion in Jackson without elaboration. United
States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992).
  And, finally, in United States v. Lopez-Gil, 965 F.2d 1124
(1st Cir. 1992), the First Circuit initially held that “cocaine
base” for purposes of § 841(b) means “crack,” but on rehear-
ing retreated from that position: “Although we continue to
believe that Congress indeed was concerned primarily with
the crack epidemic in enacting the legislation, the Govern-
ment now persuades us that it does not necessarily follow
that the term ‘cocaine base’ includes only crack.” Lopez-Gil,
965 F.2d at 1134 (emphasis in original).
  A lingering and stratified circuit split on a matter of such
importance to the administration of criminal justice surely
warrants the attention of Congress or resolution by the
Supreme Court. In the meantime, however, we reaffirm our
circuit’s holding in Booker that for purposes of the manda-
tory minimum sentence in 21 U.S.C. § 841(b)(1)(A)(iii), the
phrase “cocaine base” refers to cocaine base that constitutes
crack. Edwards’ two ten-year sentences were premised on
the district court’s factual finding that Edwards possessed
noncrack forms of cocaine base and its legal conclusion that
any form of cocaine base qualified for the mandatory
minimum. The district court’s legal conclusion was in error;
we therefore reverse and remand for resentencing in
accordance with this opinion.
                                                   REVERSED.
A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit



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