CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), appellant, Paul xxxxxx, hereby states as follows:

A. Parties and Amici: The parties below were the defendant-appellant, Paul xxxxxx, and the plaintiff-appellee, the United States of America. They also are the only parties on appeal. There are no amici.

B. Rulings Under Review: In this appeal, appellant seeks review of the district court's calculation, at sentencing on April 15, 1996, of his offense level for "cocaine base" rather than "cocaine" where the record failed to establish by a preponderance of the evidence that the substance was "crack."

In this appeal, appellant also seeks review of the district court's ruling at his sentencing on April 15, 1996, that it could not depart downward under U.S.S.G. § 5K2.0 based upon the Sentencing Commission's February 28, 1995 "Special Report To Congress: Cocaine and Federal Sentencing Policy."

C. Related Cases: This case has not been before this Court or any other court previously.

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES v

JURISDICTION v

ISSUES PRESENTED v

STATEMENT OF THE CASE 1

Proceedings Below 1

Statement of Facts 2

A. The Guilty Plea 2

B. The Sentencing Hearing 4

ARGUMENT 5

Summary of Argument 5

Discussion 6

I. Under U.S.S.G. § 2D1.1, The District Court Should Have Calculated Mr. xxxxxx's Offense Level As 22 For "Cocaine" Rather Than As 34 For "Cocaine Base" Because The Government Did Not Establish That The Substances Were "Crack" 6

A. Standard of Review 6

B. The District Court Plainly Erred In Assigning Mr. xxxxxx The Offense Level For Cocaine Base When That Guideline Applies Only To The Particular Form Of Cocaine Base That Is "Crack." 7

II. Under U.S.S.G. § 5K2.0, The District Court Should Have Departed Downward Because The Sentencing Commission's Special Report Was A Mitigating Circumstance "Not Adequately Taken Into Consideration By The Sentencing Commission In Formulating The Guidelines." 11

A. Standard of Review 11

B. The Special Report Was A Ground For Downward

Departure 11

CONCLUSION 13

CERTIFICATION OF BRIEF LENGTH 13

CERTIFICATE OF SERVICE 14

TABLE OF AUTHORITIES

CASES

United States v. Anderson,

82 F.3d 436 (D.C. Cir.),

cert. denied, 117 S. Ct. 375 (1996) 11, 12

United States v. Baskin,

886 F.2d 383 (D.C. Cir. 1989),

cert. denied, 494 U.S. 1089 (1990) 11

United States v. Beckham,

968 F.2d 47 (D.C. Cir. 1992) 11

United States v. Bennett,

100 F.3d 1105 (3rd Cir. 1996) 8

*United States v. Camacho,

40 F.3d 349 (11th Cir. 1994) 8

United States v. Edelin,

996 F.2d 1238 (D.C.Cir. 1993) 6

*United States v. James,

78 F.3d 851 (3rd Cir. 1996) 8, 10

United States v. Kim,

23 F.3d 517 (D.C. Cir. 1994) 6

United States v. Lopez,

938 F.2d 1293 (D.C. Cir. 1991) 11

United States v. Lopez-Gil,

965 F.2d 1124 (1st Cir. 1992) 6

United States v. Monroe,

978 F.2d 433 (8th Cir. 1992) 9

*United States v. Munoz-Realpe,

21 F.3d 375 (11th Cir. 1994) 8

United States v. Ortez,

902 F.2d 61 (D.C. Cir. 1990) 11

*United States v. Palacio,

4 F.3d 150 (2d Cir. 1993) 8

United States v. Saro,

24 F.3d 283 (D.C. Cir. 1994) 6

United States v. Shaw,

936 F.2d 412 (9th Cir. 1991) 6

STATUTES AND SENTENCING GUIDELINES

18 U.S.C. §3231 2

*18 U.S.C. § 3553 12-13

21 U.S.C. § 841 1, 2, 7, 9

28 U.S.C. § 994 12

*U.S.S.G. §2D1.1(c) passim

*U.S.S.G. § 5K2.0 4, 11, 12, 13

STATUTES AND RULES

Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), pertinent statutes, rules, and guidelines are reproduced in the Addendum to this brief.

JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Federal Rule of Appellate Procedure 4(b), this Court has jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

ISSUES PRESENTED

I. Whether, under U.S.S.G. § 2D1.1(c), the trial court erroneously calculated Mr. xxxxxx's offense level as that for "cocaine base," as opposed to "cocaine," when the record did not establish by a preponderance of the evidence that the substance was "crack."

II. Whether the Sentencing Commission's February 28, 1995 "Special Report To Congress: Cocaine and Federal Sentencing Policy," was a mitigating circumstance not adequately considered by the Sentencing Commission in formulating the guidelines that allowed the district court to depart downward under U.S.S.G. § 5K2.0.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. xxxxxxxxx

UNITED STATES OF AMERICA, Appellee,

v.

PAUL xxxxxx, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT

STATEMENT OF THE CASE

Proceedings Below

Paul xxxxxx was arrested on July 8, 1994. On September 6, 1994, he was indicted on three counts of distribution of a controlled substance and one count of possession with the intent to distribute a controlled substance, all in violation of 21 U.S.C. §§ 841(a)(1). (A. 1-2). Specifically, Counts One, Two and Three alleged that on June 22, July 6 and July 8, 1994, Mr. xxxxxx distributed in excess of five grams of "cocaine base, also known as crack," in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Count Four alleged that on August 11, 1994, Mr. xxxxxx possessed with the intent to distribute in excess of fifty grams of "cocaine base," with no reference to "crack," in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). (A. 2-3) Mr. xxxxxx entered a guilty plea to Count Three before the Honorable Harold H. Greene on February 6, 1995. (A. 17-26) He was sentenced on April 15, 1996, to a term of 160 months' imprisonment, to be followed by a four-year term of supervised release. (A. 5-8, 125) A notice of appeal was timely filed on April 17, 1996. (A. 9)

Statement of Facts

A. The Guilty Plea

On February 6, 1995, Mr. xxxxxx appeared before the Honorable Harold H. Greene for a status hearing, at which time his counsel advised the court that "Mr. xxxxxx is prepared to enter a plea of guilty to Count Three of the indictment . . . charging him with distribution of five grams or more of cocaine base on July 8[, 1994]." (A. 21) The government proffered that it would have proved the following if Mr. xxxxxx's case had gone to trial:

[O]n July 8th of 1994, there was a conversation between an undercover officer and the defendant on the telephone. They agreed to meet at the Roy Rogers located in the 4100 block of Wisconsin Avenue, Northwest, here in the District.

*****

The undercover officer, a female, got there first. She was waiting. Mr. xxxxxx arrived on foot. They got into the undercover vehicle, and Mr. xxxxxx directed her to drive a few blocks away south on Wisconsin Avenue. They then made a U-turn and parked near his vehicle, a gray Nissan 300 ZX. She parked the car.

Mr. xxxxxx got out. Went to that vehicle. Returned shortly after apparently retrieving something from the vehicle. He then gave the officer four white rock-like substances. She gave him $950 of government funds. He then left her car and returned to his vehicle, and left the scene.The material that Mr. xxxxxx sold to the officer was tested by the DEA and found to be 24.85 grams of cocaine base with a purity of 80 percent.

A. 23-24 (emphasis supplied).

During the plea colloquy, the sole reference to "crack" came from the court, which inquired of Mr. xxxxxx as follows:

THE COURT: All right. Mr. xxxxxx, do I understand that you are prepared to plead guilty to one of the counts of this Indictment?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Now, that count, as I understand, the charge is that you distributed or sold five grams or more of cocaine base or crack. Did you do that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You did?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Are you guilty of that charge?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Now, you know if this case went to trial they would have to prove that you had this crack in your possession, that you had the intent, or purpose, to distribute it, sell it, and that it was five grams or more. As you understand it, they could prove that?

THE DEFENDANT: Yes, Your Honor.

A. 21-22 (emphasis supplied).

B. The Sentencing Hearing

On April 15, 1996, the district court held a sentencing hearing. (A. 114-126) Treating the drugs charged in Counts One, Two and Four as relevant conduct, the presentence investigation report concluded that Mr. xxxxxx was responsible for 379 grams of "cocaine base," and assigned him a base offense level of 34, see A. 31, ¶ 17, before adjusting it downward three levels for Mr. xxxxxx's early acceptance of responsibility. A. 31, ¶¶ 22, 24. Based upon a criminal history category of IV, see A. 33, ¶¶ 30-31, the presentence investigation report calculated Mr. xxxxxx's guideline range as 151 - 188 months. A. 37, ¶ 55. The court implicitly adopted that guideline range, when it sentenced Mr. xxxxxx to 160 months in prison. (A. 125)

Mr. xxxxxx argued, through the submission of pleadings, see A.41-98, 106-113, and orally, see A. 115-118, that under U.S.S.G. § 5K2.0, even if, after Congress' rejection of the guideline amendment equalizing the offense levels for cocaine base and cocaine, the court could not adopt a one-to-one ratio, the February 28, 1995 "Special Report To Congress: Cocaine and Federal Sentencing Policy," provided a basis for the court to depart downward in Mr. xxxxxx's case. The district court rejected this argument as "frivolous" (A. 118), and indicated that it believed it had no choice but to sentence Mr. xxxxxx to a term of imprisonment between 151 and 188 months. See A. 124 (". . . [T]he fact is I don't regard these guidelines as a very reasonable effort in penology, but that's what the congress wants us to do. And I am stuck with it.")

ARGUMENT

Summary of Argument

The district court plainly erred in basing Mr. xxxxxx's offense level on 379 grams of "cocaine base" where the government failed to prove by a preponderance of the evidence that any of the four substances included in that total were n fact "crack." The error was "plain" in the sense of "obvious," because at the time of Mr. xxxxxx's April 15, 1996, sentencing, the Sentencing Commission had already clearly defined "cocaine base" for purposes of U.S.S.G. § 2D1.1(c) as limited to that "form of cocaine base" that is "crack." See U.S.S.G. § 2D1.1(c), Note D (effective November 1, 1993). There can be no doubt that this error was prejudicial where, under the "cocaine" offense level that should have applied, Mr. xxxxxx's guideline range would have been between 46 and 57 months (Offense Level 19 and Criminal History Category IV), and under the "cocaine base" offense level, the district court calculated his guideline range as between 151 and 188 months.

Discussion

I. Under U.S.S.G. § 2D1.1, The District Court Should Have Calculated Mr. xxxxxx's Offense Level As 22 For "Cocaine" Rather Than As 34 For "Cocaine Base" Because The Government Did Not Establish That The Substances Were "Crack".

A. Standard of Review

The district court's determination of the applicable offense level in Mr. xxxxxx's case was a legal conclusion this Court should review de novo. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). See also United States v. Lopez-Gil, 965 F.2d 1124, 1129 (1st Cir. 1992), citing United States v. Shaw, 936 F.2d 412, 414 (9th Cir. 1991) ("interpretation of the term 'cocaine base' is a legal question" reviewed under the de novo standard).

Although the "plain error" standard applies in this case, that standard is less exacting in the sentencing context than in the trial context. United States v. Saro, 24 F.3d 283, 287-288 (D.C. Cir. 1994). "Plain error" is found in the sentencing context whenever there is a "reasonable likelihood that the sentencing court's obvious errors affected [the defendant's] sentence." Id. at 288. See United States v. Edelin, 996 F.2d 1238, 1245 (D.C. Cir. 1993) (finding district court's downward departure plain error).

B. The District Court Plainly Erred In Assigning Mr. xxxxxx The Offense Level For Cocaine Base When That Guideline Applies Only To The Particular Form Of Cocaine Base That Is "Crack."

The district court should not have applied the offense level guidelines for "cocaine base." Rather, it should have sentenced Mr. xxxxxx based upon the offense level for "cocaine," because the record did not establish by a preponderance of the evidence that the substance at issue in his case was "cocaine base" as that term has been defined by the Sentencing Commission in U.S.S.G. § 2D1.1(c), Note D. Through Amendment 487, the Commission added Note D, explaining that, as of November 1, 1993:

'Cocaine base,' for purposes of this guideline, means 'crack.' '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.

U.S.S.G. § 2D1.1(c), Note D (emphasis supplied).

Thus, since the definitional section of U.S.S.G. § 2D1.1(c) at Note D plainly explains that, for guideline purposes, ⁽¹⁾ "cocaine base" means "crack," the only substance to be assigned the base offense level for cocaine base under the federal sentencing guidelines is the particular form of cocaine base that is "crack." Accordingly, because the record did not establish that the substance in this case was "crack," it was obvious at the time of sentencing that the appropriate base offense level should have been 22 -- the offense level for 379 grams of "cocaine." See U.S.S.G. § 2D1.1(c)(9) (base offense level 22 applies to crimes involving "[a]t least 300 G but less than 400 G of cocaine"). ⁽²⁾

Indeed, several courts have ruled that, in the absence of the requisite proof that the substance at issue meets Note D's definition of "cocaine base," i.e., crack, the offense levels for "cocaine" apply. See United States v. James, 78 F.3d 851, 855-856 (3rd Cir. 1996); United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994). See also United States v. Bennett, 100 F.3d 1105, 1111 (3rd Cir. 1996); United States v. Camacho, 40 F.3d 349, 353-354 (11th Cir. 1994) (recognizing that after November 1, 1993, under U.S.S.G. § 2D1.1(c) "'cocaine base' means 'crack'"); United States v. Palacio, 4 F.3d 150, 154-155 (2d Cir. 1993) (acknowledging that after 1993 amendment to U.S.S.G. § 2D1.1(c), "a different calibration method will exist for defendants who deal in cocaine base that is not crack") (emphasis supplied).

It was the government that bore the burden of proving by a preponderance of the evidence that the substance was "crack." ⁽³⁾ Here, the government's proffer indicated only that upon testing by the Drug Enforcement Administration, the substance sold to the undercover officer on July 8, 1994, was "found to be 24.85 grams of cocaine base with a purity of 80 percent." (A. 23-24) (emphasis supplied). The government did not establish that the substance was the particular "form of cocaine base" that is "crack" as required by U.S.S.G. § 2D1.1(c), Note D.

The indictment's reference to "crack" with respect to Count Three did not suffice to establish that the substance Mr. xxxxxx sold to the undercover officer on July 8, 1994, was "crack" because the nature of the substance, like the amount, is not an element of the offense to which Mr. xxxxxx pleaded guilty -- distributing a "controlled substance" under 21 U.S.C. § 841(a). ⁽⁴⁾

Nor do the two references to "crack" in the plea colloquy establish that the 24.85 grams of controlled substance Mr. xxxxxx admitted distributing was "crack" as opposed to some other form of cocaine base. The first reference was the district court's question whether Mr. xxxxxx had distributed or sold "cocaine base" or "crack." (A. 21-22) (emphasis supplied). Then, when asking Mr. xxxxxx whether his purpose in possessing the substance at issue was to sell or distribute it, and whether it was five grams or more, the district court referred to the substance as "crack." (A. 21-22). Neither of these inquiries by the district court had as its focus the nature of the substance, and Mr. xxxxxx's affirmative response to the first question established, at most, that the substance was either "crack" or some other form of cocaine base. Moreover, in James, the Third Circuit held that "merely because [the defendant] answered 'yes' to the prosecution's description of the crime" did not "constitute[] a sufficient admission of the defendant . . . that he possessed and sold crack." 78 F.3d at 856. Like the prosecutor's references to "crack" in the plea colloquy in James, the district court's references to "crack" in Mr. xxxxxx's case were "casual" and did not "unmistakably amount[] to a knowing and voluntary admission that the cocaine base constituted crack." Id. Thus, the district court's two passing references to "crack" in this case hardly satisfied the burden of proof by a preponderance of the evidence that the substance at issue in this case was truly "crack." See Note D to Drug Quantity Table, U.S.S.G. § 2D1.1(c).

II. Under U.S.S.G. § 5K2.0, The District Court Should Have Departed Downward Because The Sentencing Commission's Special Report Was A Mitigating Circumstance "Not Adequately Taken Into Consideration By The Sentencing Commission In Formulating The Guidelines."

A. Standard of Review

The district court's determination that it was precluded from departing downward in Mr. xxxxxx's case on the basis of the February 28, 1995 Special Report To Congress ("Special Report") is "reviewable [because it was] based on a misconstruction of its authority to depart." United States v. Lopez, 938 F.2d 1293, 1296 (D.C. Cir. 1991). See United States v. Beckham, 968 F.2d 47, 53 (D.C. Cir. 1992) (appellate court should remand for re-sentencing where it appears that trial court misunderstood its authority to depart or believed that its authority to depart "was constrained in a way it actually was not"); United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990) (same); United States v. Baskin, 886 F.2d 383, 389 (D.C. Cir. 1989) (same), cert. denied, 494 U.S. 1089 (1990).

B. The Special Report Was A Ground For Downward Departure

Although Mr. xxxxxx recognizes that in United States v. Anderson, 82 F.3d 436 (D.C. Cir.), cert. denied, 117 S. Ct. 375 (1996), this Court rejected the argument that the Special Report provided a basis for downward departure under U.S.S.G. § 5K2.0, Mr. xxxxxx raises the argument here in order to preserve his right to seek review of the issue in the Supreme Court.

The Special Report is a 241-page comprehensive study which analyzed and considered the appropriate level of punishment to be imposed for cocaine base offenses by the very agency charged by Congress to make sentencing determinations and recommendations. See 28 U.S.C. § 994. In it, "the [Sentencing] Commission firmly concludes that it cannot recommend a ratio differential [between the penalties for crack and cocaine] as great as the current 100-to-1 quantity ratio." See Special Report at 196. See also Special Report at 198 ("The [Sentencing] Commission strongly recommends against a 100-to-1 quantity ratio"). The information on which the Special Report was based was not available at the time the guideline under which Mr. xxxxxx was sentenced was promulgated. Therefore, under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, the Special Report was a ground for downward departure because it was an admission by the Commission that there existed "a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."

Moreover, as Judge Wald explained in her dissent in Anderson, denying a downward departure violated the Sentencing Reform Act "itself" since "Section 3553(a) [of that act] sets forth the factors a court must consider when sentencing under the guidelines, directing courts to impose a sentence which is 'sufficient, but not greater than necessary' to achieve the goals of sentencing." 82 F.3d at 446-447. See also 82 F.3d at 448 ("The nub of the problem . . , . . . is that the Special Report is a startlingly forthright admission by the Sentencing Commission that its crack guidelines violate § 3553(a)'s instructions that a court impose a sentence 'sufficient, but not greater than necessary' to 'reflect the seriousness of the offense' and 'provide just punishment.'")

CONCLUSION

For the foregoing reasons, Mr. xxxxxx's case should be remanded for resentencing within the "cocaine" guideline range of 46-57 months. Failing that, the Court should remand for consideration of a downward departure under U.S.S.G. § 5K2.0.

Respectfully submitted,

Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Paul xxxxxx

625 Indiana Avenue, N.W.

xxxxxx, D.C. 20004

(202) 208-7500

CERTIFICATION OF BRIEF LENGTH

Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 12,500 words.

Santha Sonenberg

CERTIFICATE OF SERVICE

This is to certify that on this 7th day of January, 1997, two copies of the foregoing Brief for Appellant were personally served upon the Office of the United States Attorney, 555 Fourth Street, N.W., xxxxxx, D.C. 20001 by hand-delivery.

Santha Sonenberg

1. Mr. xxxxxx is not challenging his statutory mandatory minimum in this case. Because he pleaded guilty to distributing in excess of five grams of cocaine base, as charged in Count Three, Mr. xxxxxx concedes that his mandatory minimum is five years pursuant to 21 U.S.C. § 841(b)(1)(B)(iii). The only issue before the Court is the proper guideline offense level given the Sentencing Commission's definition of "cocaine base" in § 2D1.1.

2. After adjustments for Mr. xxxxxx's acceptance of responsibility, the final offense level should have been 19.

3. James, 78 F.3d at 865 ("the government must "show by a preponderance of the evidence that the substance in question was actually crack, especially in light of the enormously high punishment at risk in this determination"), 858 ("The government failed to show by a preponderance of the evidence that the form of cocaine base . . . was actually crack"). See also United States v. Monroe, 978 F.2d 433 (8th Cir. 1992) (sentencing determination that substance was "crack" had to be supported by a preponderance of the evidence).

4. Even if this Court were to conclude that Mr. xxxxxx's plea to Count Three of the indictment established that he distributed 24.85 grams of "crack," that would not justify treating the substances used as relevant conduct (the substances charged in Counts One, Two and Four) as "crack," based on the language in the indictment, where Mr. xxxxxx did not plead guilty to those counts. Thus, at most, Mr. xxxxxx's base offense level should have been calculated as if he distributed 24.85 grams of "crack" and the rest as simple "cocaine. Moreover, with respect to Count Four (which charged possession with intent to distribute 374 grams of the cocaine base for which Mr. xxxxxx was held accountable), even the indictment did not make any reference to "crack."