                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ______________

                                   No. 97-3423WM
                                  ______________

United States of America,                *
                                         *
             Appellee,                   *
                                         * On Appeal from the
      v.                                 * United States District Court
                                         * for the Western District
                                         * of Missouri.
Lord Kang,                               *
                                         *
             Appellant.                  *
                                    ___________

                             Submitted: April 14, 1998
                                 Filed: April 23, 1998
                                   ___________

Before RICHARD S. ARNOLD,1 Chief Judge, LAY and LOKEN, Circuit Judges.
                               ___________

RICHARD S. ARNOLD, Chief Judge.

      This is a drug case in which the issues on appeal relate to the
length of the sentence imposed on the defendant, Lord Kang. Kang pleaded
guilty to one count of possessing cocaine base or "crack" with intent to
distribute it, in violation of 21 U.S.C. § 841(a)(1) (1994), and one count
of distributing cocaine base or "crack," in




      1
       The Hon. Richard S. Arnold stepped down as Chief Judge of the United States
Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He
has been succeeded by the Hon. Pasco M. Bowman II.
violation of the same statute. The plea was entered in accordance with the
terms of a plea-bargain agreement made by Kang and the government. The
District Court imposed a sentence of 87 months (seven years and three
months) on each of the two counts, with the time to be served concurrently.

      On this appeal, Kang makes three arguments, each of which we shall
discuss in turn. His principal point relates to the quantity of drugs
attributed to him by the sentencing court, a factor which is crucially
relevant to the length of the term of imprisonment. The District Court
attributed to Kang more than 50 grams of crack, yielding a base offense
level of 32. In making this decision, the Court held that Kang had agreed,
as part of the plea-bargain agreement, to this amount of drugs.         We
disagree. In our opinion, the plea-bargain agreement contained no such
stipulation. We therefore reverse and remand for further proceedings with
respect to the sentence.

                                    I.

      For the most part, the arguments of both sides on appeal revolve
around the terms of the plea-bargain agreement. There is no question of
guilt or innocence as to the offenses of conviction, because Kang pleaded
guilty to both of them.     Kang's first argument relates to the phrase
"cocaine base or 'crack,'" which appears several times in the agreement.
The substance that Kang is accused of having possessed and distributed is
referred to consistently as "cocaine base or 'crack.'" Kang complains that
his sentence was calculated as if the substance were simply "crack," a
particularly potent form of cocaine base. Under the rule of lenity, he
argues, the phrase "cocaine base or 'crack,'" appearing as it does in the
disjunctive, must be interpreted as limited to "cocaine base," as opposed
to "crack," because, Kang says, such an interpretation would produce a
shorter sentence.




                                    -2-
      It is true that powder cocaine is less severely treated under the
Sentencing Guidelines than "crack," a form of the drug that can be smoked
and has been found by Congress to be more addictive. Kang's argument in
the present case must fail, however, because "cocaine base" and "crack,"
as those words are used in the Sentencing Guidelines, are the same thing.
Although chemically there are forms of cocaine base that are not "crack,"
the Guidelines make the two terms synonymous for sentencing purposes. The
notes to the Drug Quantity Table in the Sentencing Guidelines, Section (D),
provide as follows: "'cocaine base' for the purposes of this guideline,
means 'crack.'" Thus, the phrase "cocaine base or 'crack'" is simply an
expanded way of saying "crack." "Cocaine base" and "crack" are synonyms.
There is no difference between the two, so far as the Sentencing Guidelines
as presently written are concerned, and it therefore cannot be said that
"cocaine base" would produce a less severe sentence than an equal quantity
of "crack." The argument based on the rule of lenity therefore fails.

                                   II.

      Kang's next argument is more substantial. The two counts to which
Kang pleaded guilty, the offenses of conviction, involved a total of 6.84
grams of "crack." This quantity, under the Sentencing Guidelines, would
produce a base offense level of 26. The District Court sentenced Kang,
however, on the basis of between 50 and 150 grams of "crack," producing a
base offense level of 32. After a three-level decrease for acceptance of
responsibility under § 3E1.1 of the Guidelines, the total offense level
ended up at 29. This level, combined with Kang's criminal history category
of I, leads to a range of imprisonment of between 87 and 108 months. The
District Court sentenced Kang at the bottom of this range, 87 months. If
Kang had been sentenced on the basis of the 6.84 grams involved in the
offenses of conviction, assuming that the rest of the Guidelines
calculation remained unchanged, his total offense level would have been 23,
leading to an imprisonment range of 46 to 57




                                    -3-
months. Kang asserts that it was error to attribute to him more than 50
grams, in view of the fact that the government produced, at the sentencing
hearing, no evidence that Kang had been involved in any transactions beyond
the offenses of conviction.

      If a defendant contests at sentencing a particular fact relevant to
sentencing, the government, in general, has the burden of proving that fact
by a preponderance of the evidence. The government admittedly introduced
no evidence to connect Kang with more than 6.84 grams.        Instead, the
government claims, and the District Court held, that Kang had stipulated
to his involvement with between 50 and 150 grams. The stipulation, the
government argues, was contained in the plea-bargain agreement.         The
relevant portion of the agreement appears in paragraph 10, and reads as
follows:

           10.   The parties understand and agree that the
           stipulations and recommendations contained in the
           agreement are not binding on either the Court or
           the United States Probation Office.      The United
           States submits that pursuant to the Guidelines
           promulgated pursuant to Title 28, United States
           Code, Section 994, the most applicable offense
           level as to Counts Three and Nine of the indictment
           would be determined as follows:

                       A.    Section    2D1.1   of    the
                 Guidelines is the most applicable to the
                 statute of conviction, in that the
                 amount of cocaine base or "crack,"
                 including relevant conduct of defendant
                 under Section 1B1.3, is more than 50
                 grams and less than 150 grams of cocaine
                 base or "crack," yielding a Base Offense
                 Level of 32.


      It is clear to us that the agreement contains no such stipulation.
The operative language is "the United States submits."       All of the
information with respect to drug




                                    -4-
quantity appears following this language. The effect of this portion of
paragraph 10 is simply to set out the position of the government with
respect to sentencing. The defendant in no way agrees to this position.
Contrast the language of paragraph 9, which includes the phrase "the
parties stipulate." The language of paragraph 10 is unambiguous, and the
words cannot bear the construction put upon them by the government. The
government is bound by the agreement that it made.

      The United States makes two arguments in response.         First, it
contends that the construction that we have indicated would make the
agreement meaningless.     Why would the government make a plea-bargain
agreement in the first place, it says, if the agreement did not nail down
the quantity of drugs, probably the single most important fact for
sentencing purposes? We do not know why the government made the agreement
that it did, but we are in no doubt as to the meaning of the agreement.
As to whether the agreement as written makes sense, we have little trouble
in concluding that it does. As with any contract, each party undertakes
certain obligations. The defendant agrees to plead guilty to two counts,
and the government agrees to dismiss four other counts. In paragraph 4,
the United States and the defendant agree on the facts constituting the two
offenses of conviction. The agreement contains numerous other undertakings
and promises on both sides. It certainly is not deprived of all sense by
interpreting the words "the United States submits" to have their ordinary
meaning.

      Secondly, the government relies on certain remarks made by counsel
at the guilty-plea hearing. The following colloquy occurred among the
Court, the defendant's lawyer, and the Assistant United States Attorney:

     THE COURT: Now, as I stated, the sentence will probably come
                under the sentencing guidelines.




                                    -5-
                      Mr. Smith, have you made a calculation as to
                      the probable sentence called for under the
                      sentencing guidelines?

     MR. SMITH: Yes, I have, Your Honor.

     THE COURT: What would that be?

     MR. SMITH: Your Honor, if I may refer to the reference
                material. Your honor, based upon the facts and the
                terms of the plea agreement, we have calculated
                that Mr. Kang's likely sentence would be around
                Level 29, or possibly Level 28, resulting in an
                incarceration period of between 87 to 108 months,
                or possibly slightly less.

     MR. RUSH:   Judge, if I may just for the record. Mr. Smith,
                 the stipulation of the plea agreement to the drug
                 amount places him at a Level 32. And I believe,
                 just for clarification, the 29 that he's referring
                 to would be after three points for acceptance.


In this passage, Mr. Smith is counsel for the defendant, and Mr. Rush is
counsel for the United States.     The government stresses the fact that
defense counsel, in referring to the terms of the plea agreement, stated
that "we have calculated that Mr. Kang's likely sentence would be around
Level 29, or possibly Level 28, resulting in an incarceration period of
between 87 to 108 months . . .." Immediately thereafter, the Assistant
United States Attorney states that "the stipulation of the plea agreement
to the drug amount places him at a Level 32. And I believe, just for
clarification, the 29 that he's referring to would be after three points
for acceptance."

      The government did indeed refer to a "stipulation" as to the drug
amount. Defense counsel, however, does not characterize the plea agreement
as containing a




                                   -6-
stipulation to that effect, but simply states that "we have calculated .
. . Mr. Kang's likely sentence . . .." This language could amount to an
acknowledgment that the plea-bargain agreement, contrary to its own plain
terms, amounted to a stipulation as to the relevant amount of drugs, but
it certainly need not be read to convey such a meaning. The statement may
mean simply that the defense and the government have computed what the
sentence is likely to be if the government is able to substantiate with
proof its submission as to the appropriate quantity of drugs to be
attributed to the defendant. We do not believe that this ambiguous passage
is strong enough to convert the plain language of the plea-bargain
agreement into something that it is not. A stipulation by a defendant in
a criminal case, especially as to a matter this important, should be free
of ambiguity. Accordingly, we reject the government's argument that this
colloquy is clear enough to convert a statement of the government's
position into a stipulation of both parties. It follows that it was not
proper, on this record, to sentence defendant on the basis of 50 or more
grams of crack. Such a sentence would require evidence, and none has been
introduced.

                                  III.

      Defendant's last argument has to do with his claim that he should
have been given a two-level reduction in his offense level under the
"safety valve" provisions of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f)
(1994). Section 5C1.2 provides, in relevant part, as follows:

     (1)   The defendant does    not have more than one criminal
           history point, as     determined under the sentencing
           guidelines;

     (2)   The defendant did not use violence or credible threats of
           violence or possess a firearm or other dangerous weapon
           (or entice another participant to do so) in connection
           with the offense;




                                   -7-
     (3)   The offense did not result in death or serious bodily
           injury to any person;

     (4)   The defendant was not an organizer, leader, manager, or
           supervisor of others in the offense, as determined under
           the sentencing guidelines and was not engaged in a
           continuing criminal enterprise, as defined in 21 U.S.C.
           § 848; and

     (5)   Not later than the time of the sentencing hearing, the
           defendant has truthfully provided to the Government all
           information and evidence the defendant has concerning the
           offense or offenses that were part of the same course of
           conduct or of a common scheme or plan. . . .


      It is undisputed that defendant meets requirements (1) through (4).
At the sentencing hearing, the government took the position that he did not
meet requirement (5). In the opinion of government counsel, defendant had
not truthfully provided all information and evidence he had concerning the
offenses that were part of the same course of conduct or of a common scheme
or plan. In conversations with the government, defendant had not admitted
being involved with more than 6.84 grams of crack. That is, he had not
admitted the additional drug quantities that have been previously discussed
in this opinion.     Accordingly, government counsel, who believed that
defendant was not being truthful, stated to the Court that he was not
eligible for "safety valve" treatment, and the Court agreed.

      This argument is a replay, in different form, of the point discussed
above in part II of this opinion. Whether defendant truthfully denied
involvement with more than 6.84 grams is a question of fact.           The
government cannot by its mere ipse dixit establish that defendant has been
untruthful. The issue requires evidence, or, as the government contends
in this case, an agreement or stipulation by the defendant. As we have
seen, there was no such evidence, nor was there such a stipulation. On the




                                    -8-
present record, therefore, it cannot be said that there was a sufficient
basis for rejecting the defendant's "safety valve" contention. Whether
that contention should be accepted or rejected depends on the facts, and
no relevant facts are in this record.

                                   IV.

      For the reasons we have given, the judgment must be reversed, and the
cause remanded for further proceedings. The conviction, as established by
defendant's plea of guilty, of course stands. The only question to be
determined on remand is the proper sentence, which will depend on the
amount of drugs attributable to the defendant. Either side will be free
to introduce evidence on this issue, and the government will bear the
burden of proving the drug quantity it contends for by a preponderance.

     It is so ordered.

     A true copy.

           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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