TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

JURISDICTION 1

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 2

Plea 3

Diminished Capacity 4

[sealed section] 5

[sealed section] 8

Guideline Computation 9

Sentencing Hearing 10

SUMMARY OF ARGUMENT 11

STANDARD OF REVIEW 14

ARGUMENT 15

I.[UNDER SEAL]. 15

II.[UNDER SEAL] 21

III.THE DISTRICT COURT ERRED WHEN IT DISREGARDED THE UNCONTROVERTED EXPERT OPINION OF ITS OWN COURT-APPOINTED PSYCHOLOGIST AND FOUND THAT DEFENDANT WHOSE IQ TEST RESULTS PLACED HIM IN THE RETARDED RANGE WAS OF AVERAGE INTELLIGENCE AND DID NOT SUFFER FROM DIMINISHED CAPACITY

A.An offender with diminished capacity is not as deserving of punishment nor as likely to be deterred by it and the sentencing guidelines favor departures on this ground

IV.THIS COURT SHOULD REMAND THIS CASE FOR CONSIDERATION OF A DEPARTURE ON THE BASIS OF THE SUPERVENING DECISION OF THE UNITED STATES SENTENCING COMMISSION FINDING THAT THE 100:1 PENALTY RATIO FOR COCAINE BASE AND COCAINE POWDER LACKS ANY RATIONAL BASIS 29

CONCLUSION 32

CERTIFICATE OF LENGTH

CERTIFICATE OF SERVICE

ADDENDUM

TABLE OF AUTHORITIES

CASES

 Dendy v. Washington Hospital Center,

581 F.2d 990 (D.C. Cir. 1978) 28

 Patterson v. Alabama,

294 U.S. 600 (1935) 31

 Ruiz v. Secretary of Health & Human Services,

580 F. Supp. 803 (D. P.R. 1984) 28

 United States v. Adonis,

744 F. Supp 336 (D.D.C. 1990) 27

 United States v. Brown,

859 F.2d 974 (D.C. Cir. 1988) 29

 United States v. Bureau,

52 F.3d 584 (6th Cir. 1995) 16

*United States v. Chatman,

986 F.2d 1446 (D.C. Cir. 1993) 26

*United States v. Dawson,

990 F.2d 1314 (D.C. Cir. 1993) 20

 United States v. Dixon,

998 F.2d 228 (4th Cir. 1993) 16

 United States v. Doe,

934 F.2d 353 (D.C. Cir. 1991) 19, 21

*United States v. Drown,

942 F.2d 55 (1st Cir. 1991) 16, 18

*United States v. Garcia,

926 F.2d 125 (2d Cir. 1991) 22, 23, 24

 United States v. Harrington,

947 F.2d 956 (D.C. Cir. 1991) 14

 United States v. Howard,

902 F.2d 894 (11th Cir. 1990) 16, 17

 United States v. Johnson,

40 F.3d 436 (D.C. Cir. 1994) 29, 32

 United States v. Kim,

23 F.3d 513 (D.C. Cir. 1994) 14

*United States v. Martin,

25 F.3d 211 (4th Cir. 1994) 16, 18

*United States v. Perkins,

963 F.2d 1523 (D.C. Cir. 1992) 28

*United States v. Rivera,

994 F.2d 942 (1st Cir. 1994) 27

 United States v. Romolo,

937 F.2d 20 (1st Cir. 1991) 24

 United States v. Smith,

27 F.3d 649 (D.C. Cir. 1994) 2, 3, 10, 14

 United States v. Thompson,

27 F.3d 671 (D.C. Cir. 1994) 29, 32

 United States v. Washington,

12 F.3d 1128 (D.C. Cir. 1994) 31

*United States v. Watson,

No. 92-3056, slip op. (D.C. Cir. June 20, 1995) 24

 United States v. Wishnefsky,

7 F.3d 254 (D.C. Cir. 1993 14

 Wade v. United States,

504 U.S. 181 (1992) 19

STATUTES, RULES AND GUIDELINES

 18 U.S.C. § 371 passim

 18 U.S.C. § 3553(b) 12, 21, 23, 31

 18 U.S.C. § 3553(f) 10, 11

 28 U.S.C. § 994 15, 30

 Fed. R. Crim. P. 35(b) 12, 16

 U.S.S.G. § 2D1.1 10, 29, 31

 PROPOSED AMENDMENT to U.S.S.G. § 2D1.1 29, 30

 U.S.S.G. § 5K1.1 passim

 U.S.S.G. § 5K2.0 passim

 U.S.S.G. § 5K2.13 passim

IN THE UNITED STATES DISTRICT COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 95-3003

BRIEF OF APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

    v.

xxxxxx C. xxxxxxx, Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this court has jurisdiction pursuant to 18 U.S.C. § 3742.

STATEMENT OF THE CASE

Mr. xxxxxxx was indicted on March 8, 1994 in a two-count indictment charging him with possession with the intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii); and possession with the intent to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (A 7). On May 18, 1994, pursuant to a plea agreement the defendant waived indictment and pleaded guilty to a superseding information charging him with a single count of conspiracy to commit an offense against the United States, to wit, possession with intent to distribute 50 or more grams of cocaine base and possession with intent to distribute 50 or more grams of cocaine hydrochloride in violation of 18 U.S.C. §371 (A 19). At sentencing, on December 6, 1994, the court sentenced Mr. xxxxxxx to a period of incarceration of 54 months (A 31). This represented a six month downward departure from his guideline sentence on the ground recognized by this court in United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), that as a deportable alien Mr. xxxxxxx was likely to be confined under more severe conditions than he would otherwise (ST 27). The district court denied the other three grounds for departure requested by Mr. xxxxxxx (ST 21-28). On December 15, 1995, the defendant filed a notice of appeal challenging the sentence (A 34).

STATEMENT OF FACTS

The offense to which Mr. xxxxxxx pleaded guilty stems from his arrest on March 4, 1994 at the Greyhound bus station in the District of Columbia by members of the interdiction unit of the Metropolitan Police Department (A 22). Mr. xxxxxxx was a passenger en route from New York City to Roanoke, Virginia when members of the interdiction unit boarded the bus, as it was waiting at the station, and began questioning passengers. Id.

During a consensual search, no contraband was found on Mr. xxxxxxx's person or his luggage (SA 8). The luggage was on an open, overhead rack. As the officers began questioning the passenger seated in front of Mr. xxxxxxx they sought to search a portable radio also located in the overhead rack. When the police asked who owned the radio, Mr. xxxxxxx claimed ownership and consented to its search. Inside the speaker compartment of the radio, the officers found approximately 54 grams of cocaine base and 55 grams of cocaine hydrochloride in two separate plastic bags (SA 9). The officers arrested Mr. xxxxxxx.

On March 8, 1994, Mr. xxxxxxx was charged by indictment with one count of possession with intent to distribute more than 50 grams of cocaine base and one count of possession with intent to distribute more than 50 grams of cocaine hydrochloride (SA 7).

Plea

Mr. xxxxxxx pleaded guilty pursuant to a plea agreement to a one-count information charging him with conspiracy to commit an offense against the United States, to wit, possession with intent to distribute 50 or more grams of cocaine base and possession with intent to distribute 50 or more grams of cocaine hydrochloride in violation of 18 U.S.C. §371 (PT 5-6). Because the defendant was detained pretrial and did not have particularized information about his supplier, the agreement did not contain a cooperation clause or a government promise to file a departure motion in the event of the defendant's substantial assistance (HT 23-24).

Diminished Capacity

Mr. xxxxxxx is mentally retarded, with an IQ of 67 (SA 1). He reads below the third grade level and suffers from a developmental reading disorder. Id. His quantitative skills are at a fifth grade level. Id. He dropped out of school in the ninth grade. He is considerably below the norm in all areas of intellectual functioning (SA 1-5).

Mr. xxxxxxx also was found to be suffering from an adjustment disorder, including anxiety and depression (SA 5). His social development is limited. He was 23 years old at the time of his arrest. Born in Jamaica, one of ten children of a very poor family, he was raised by his mother with no financial support and only occasional contact with his father (SA 5). He is shy, reserved and passive (SA 2).

For a number of years into the present, Mr. xxxxxxx has been functioning "in the mild range of mental retardation" (SA 3). His scores on the Wechsler Adult Intelligence Scale ("WAIS") suggest that he has very limited cultural understanding of the United States (SA 3). In quantitative areas, his achievement is limited; in verbal and reading areas, it is even more limited. In sum, his mental capacity is "considerably below the norm" and "significantly reduced" (SA 1-5).

In the opinion of the court-appointed psychologist, the

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combination of Mr. xxxxxxx's mental retardation, low intellectual functioning and cultural naivete make him easily influenced by others, a follower rather than a leader, and an easy prey to be used by the drug leader, "Ray" (SA 3). His reduced mental capacity thus contributed to his commission of this offense.

Dr. Richard Lawrence, a licensed psychologist, performed the psychological evaluation of Mr. xxxxxxx (PT 26). Dr. Lawrence was retained by the probation officer at the direction of the district court. In addition to reviewing records and conducting a clinical interview, Dr. Lawrence conducted a standard battery of psychological tests including: (1) Wechsler Adult Intelligence Scale - Revised; (2) Wide Range Achievement Test - Revised; (3) Draw a Person Technique; (4) Bender Gestalt; (5) Thematic Apperception Test; and (6) Sentence Completion Technique (SA 1). In his report, Dr. Lawrence addressed five questions specifically raised by the court and concluded that the defendant's diminished capacity contributed to the commission of the offense (SA 1-3).

Dr. Lawrence's findings and opinions were uncontroverted.

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Guideline Computation

The defendant had no prior criminal convictions hence his criminal history category is I. The offense level for the 18 U.S.C §371 conspiracy is determined by reference to the base offense level for the underlying drug distribution offense (SA 9).

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U.S.S.G. §2X1.1(a). The 56 grams of cocaine hydrochloride were negligible in the calculation but the 54 grams of cocaine base resulted in an offense level of 32. U.S.S.G. §§2D1.1(a)(3) & (c)(4). After a reduction for acceptance of responsibility, the offense level was 29 (SA 10). The defendant's sentencing range was therefore 87-108 months. Because §371 carries a maximum penalty of 5 years, however, his guideline sentence is the statutorily authorized maximum sentence of 5 years. U.S.S.G. §5G1.1(a).

Sentencing Hearing

The defendant asked the court to depart down from the guideline sentence on four separate grounds: (a) pursuant to U.S.S.G. §5K2.0, p.s., [ ]; (b) pursuant to U.S.S.G. §5K2.13, p.s, for his diminished capacity; (c) by analogy to 18 U.S.C. §3553(f) because the defendant was a first-time, non-violent, minor drug offender intended by Congress to receive a comparatively lenient sentence under "safety valve" provisions enacted in the 1994 crime bill; and (d) under the theory of United States v. Smith, because his status as a deportable alien would result in conditions of confinement more severe than would otherwise.

The government opposed all departure requests made by the defendant. The court granted a six-month departure on the Smith ground. This ruling is not at issue in this appeal.

[ ]

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[ ] The district court declined to depart pursuant to § 5K2.13 because it rejected the uncontroverted findings of its own appointed psychologist that the defendant was mildly retarded and that his capacity was diminished. Based on its observations of the defendant's conduct and its discussions with him, the district court found that the defendant was of average intelligence and did not suffer from diminished capacity (ST 27).

The court also declined to depart by analogy to the safety valve provisions of 18 U.S.C. § 3553(f). It found that §3553(f) applied only to title 21 drug offenses, not the general conspiracy count to which the defendant had pleaded. The court further found that the defendant had already received the benefit of a reduced sentence by virtue of his plea to the §371 conspiracy which carries a maximum penalty of five years, a lower maximum than 21 U.S.C. §841 with which he had originally been indicted. This ruling is not at issue in this appeal.

SUMMARY OF ARGUMENT

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The court clearly erred when it disregarded the uncontroverted expert opinion of its own psychologist who determined that the defendant's retardation and ignorance of the culture contributed to the commission of the offense because it made him especially susceptible to being influenced by the drug trafficker. In the process, the court misapplied U.S.S.G. §5K2.13 by focusing on what it believed to be the defendant's potential mental capabilities rather than his actual and reduced mental capacity at the time of the offense.

Lastly, under the supervening decision doctrine, this court should remand the case for consideration of a downward departure on the basis of the United States Sentencing Commission's findings in

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its 1995 Cocaine Report that the current 100:1 penalty ratio for cocaine base and cocaine powder has no empirical justification.

STANDARD OF REVIEW

Whether the language and structure of U.S.S.G. §5K1.1 and Rule 35(b), Fed.R.Crim.P. grants the defendant a due process right [ ] is a question of law reviewed de novo. See United States v. Wishnefsky, 7 F.3d 254 (D.C. Cir. 1993).

Whether "a particular factor is an appropriate ground for departure involves a question of statutory interpretation over which this court exercises plenary review." United States v. Harrington, 947 F.2d 956, 957 (D.C. Cir. 1991) (internal quotation marks omitted).

Whether the district court misunderstood the nature or extent of its departure authority is reviewed de novo. United States v. Smith, 27 F.3d 149 (D.C. Cir. 1994).

Whether a district court made a correct finding of fact in its application of the guidelines is reviewed under the clearly erroneous standard. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994).

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In light of these circumstances, the district court misunderstood the extent of its departure authority under §5K2.0. III.THE DISTRICT COURT ERRED WHEN IT DISREGARDED THE UNCONTROVERTED EXPERT OPINION OF ITS OWN COURT-APPOINTED PSYCHOLOGIST AND FOUND THAT DEFENDANT WHOSE IQ TEST RESULTS PLACED HIM IN THE RETARDED RANGE WAS OF AVERAGE INTELLIGENCE AND DID NOT SUFFER FROM DIMINISHED CAPACITY

A.An offender with diminished capacity is not as deserving of punishment nor as likely to be deterred by it and the sentencing guidelines favor departures on this ground

This court has recognized that "two of the primary rationales for punishing an individual by incarceration -- desert and deterrence -- lose some of their relevance when applied to those with reduced mental capacity." United States v. Chatman, 986 F.2d 1446, 1452 (D.C. Cir. 1993). The guidelines also encourage downward departures where an offender suffers from diminished capacity that contributed to the offense. U.S.S.G. §5K2.13. United States v. Rivera, 994 F.2d 942, 948 (1st Cir. 1994) (Breyer, C.J.).

The evidence of Mr. xxxxxxx's reduced mental capacity was uncontroverted. His intelligence scale of 67 classifies him as mentally retarded in the Weschler Adult Intelligence Scale Revised. See United States v. Adonis, 744 F. Supp. 336, 341 (D.D.C. 1990) (after remand). The Weschler Scale is the standard measure for intellectual functioning. Id., 744 F. Supp. at 341 n. 22. Moreover, Mr. xxxxxxx's intelligence level is significantly lower than the average intelligence level of prisoners as a whole which is 93.2. Id. at n. 23. In Mr. xxxxxxx's case his reduced intelligence scale was also aggravated by a reading disability that leaves him reading below third grade level. His quantitative achievement which is at a fifth grade level is not much better. To compound his reduced capacity, Mr. xxxxxxx's cultural awareness was very limited.

The psychologist who developed the evidence of Mr. xxxxxxx's reduced mental capacity was selected by the probation officer and was acting as the district court's expert. He was impartial, not the defendant's hired advocate. No evidence in the record impeaches the psychologist's expertise, his test findings, or his credibility.

The district court disregarded this evidence and concluded that the defendant was of average intelligence. Without any contrary evidence of test-based intellectual achievement or expert opinion, the district court reached its opinion based on its own observations of the defendant and discussions with him. The discussions that the court had with the defendant were limited and were either in response to questions or were statements by the defendant expressing his remorse.

The court cannot reject, without adequate explanation, the undisputed evidence of an expert witness whom the court has retained. See Dendy v. Washington Hospital Center, 581 F.2d 990, 991 (D. C. Cir. 1978). The explanation given by the court -- that it perceived that the defendant had greater intellectual potential abilities than his test results showed -- was not adequate. The court's lay observations cannot serve as the basis to reject expert, uncontroverted opinion on a medical or psychological issue. See Ruiz v. Secretary of Health & Human Services, 580 F. Supp. 803, 807 (D. P.R. 1984).

Moreover, the issue under §5K2.13 is whether the defendant at the time of the offense was suffering from diminished capacity which contributed to it. United States v. Perkins, 963 F.2d 1523, 1526 (D.C. Cir. 1992). Whether as the court concluded the defendant's test scores underrepresented his potential abilities was not the issue. Even if the district court were correct that the defendant had the potential for average performance, the uncontroverted results of the psychological testing reflected actual intellectual and emotional functioning at much more reduced capacity. Section 5K2.13 addresses actual capacity at the time of the offense not potential capacity.

The court's denial of the defendant's request for a §5K2.13 departure thus misconstrued the nature of the departure decision and consequently underestimated the departure authority available under this section.

  IV.THIS COURT SHOULD REMAND THIS CASE FOR CONSIDERATION OF A DEPARTURE ON THE BASIS OF THE SUPERVENING DECISION OF THE UNITED STATES SENTENCING COMMISSION FINDING THAT THE 100:1 PENALTY RATIO FOR COCAINE BASE AND COCAINE POWDER LACKS ANY RATIONAL BASIS

What is known today about the basis for the 100:1 crack cocaine sentencing ratio in title 21 and the sentencing guidelines is significantly different from what was known when this court upheld the constitutionality of the cocaine sentencing scheme. Compare United States v. Johnson, 40 F.3d 436 (D.C. Cir. 1994); United States v. Thompson, 27 F.3d 671 (D.C. Cir. 1994); United States v. Brown, 859 F.2d 974 (D.C. Cir. 1988). Since those opinions were issued, the United States Sentencing Commission in February 1995, published a comprehensive study titled "Special Report to Congress: Cocaine and Federal Sentencing Policy" ("Crack Report").

The Commission found that there is "sparse empirical evidence" to support the premise that crack cocaine poses a greater danger to society or to drug users than cocaine powder. Crack Report at 195. Even if crack poses some greater danger, however, the Commission determined that there is no evidence to support the 100:1 ratio. Id. at 191-198. As a result, the Commission has since also adopted and transmitted to Congress a proposed amendment to U.S.S.G. §2D1.1 which equalizes the penalties for cocaine hydrochloride and cocaine base. 60 Fed. Reg. 25074 (May 10, 1995). Unless modified or rejected by Congress, this amendment will go into effect on November 1, 1995.

The Crack Report is a 241-page comprehensive study which analyzes and considers 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. The report analyzes each factor perceived to be relevant to the distinction between crack and powder cocaine. Many of the factors were found to provide no support for a higher penalty for crack. Of "[t]he factors that suggest a difference between the two forms of cocaine", however, the Report concludes that they "do not approach the level of a 100-to-1 quantity ratio." Report at xiv (emphasis added).

For example, the report found that the existing 100:1 penalty ratio (i) cannot be justified by the physiological effects of the two forms of cocaine, Crack Report at 182-83; (ii) has a disparate impact on blacks (in the last fiscal year for which data was available, 88.3% of crack defendants were black, 7.1 were Hispanic, and only 4.1% were xxxxxxx), Crack Report at 161, Table 13; (iii) creates higher penalties for street dealers than for their more culpable suppliers, Crack Report at 174; (iv) effects a double punishment on crack defendants in light of subsequent guideline changes, Crack Report at xv; and (v) creates extraordinary disparities given the street values of the two forms of cocaine. Crack Report at 173, Table 19.

  By adopting proposed amendments to cocaine base guidelines, the Commission acknowledged that it had not adequately considered the 100:1 sentencing disparity between crack and powder cocaine before enacting the guidelines presently in effect and in light of changes to other guidelines specifically addressing harms associated with some crack offenses. In short, "the Commission concluded that sufficient policy bases for the current penalty differential do not exist." 57 Crim. L. Rptr. at 2097.

Though this issue was not raised below, the Commission's Crack Report and its proposed amendment to the sentencing guidelines supports a downward departure under 18 U.S.C. §3553(b) and §5K2.0. If the defendant's guidelines had been calculated under the equalized version of §2D1.1, his base offense level would have been 18. U.S.S.G. §2D1.1(c)(11). After a three level reduction for acceptance of responsibility, his guideline range would have been 18 to 24 months before any other departures.

In the interests of justice, this court is "bound to consider any change, either in fact or in law, which has supervened since the [trial court's] judgment was entered. United States v. Washington, 12 F.3d 1128, 1138 (D.C. Cir. 1994) quoting Patterson v. Alabama, 294 U.S. 600, 607 (1935). The Sentencing Commission's Crack Report and proposed amendment is just such a change. The

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defendant did not seek a departure before the district court based on the stark ratio between crack cocaine and powder cocaine because it would have been pointless given this court's opinions in United v. Thompson, 27 F.3d 671 (D.C. Cir. 1994) and United States v. Johnson, 40 F.3d 436 (D.C. Cir. 1994).

Mr. xxxxxxx is the paradigmatic defendant whom the Sentencing Commission intended to benefit by its proposed amendment. He is a first-time offender. His involvement was minor, serving as mule to carry the drugs for the dealer in return for a set sum of money. He possessed no weapons and did not engage in any violence. Because his offense does not involve a statutory mandatory minimum, his sentence is based entirely on the guidelines. The Sentencing Commission's clear determination that the current guidelines are in error should serve as a basis for a reduction of Mr. xxxxxxx's sentence.

CONCLUSION

The district court erred [ ] In addition, the district court erred in rejecting the uncontroverted finding that the defendant suffers from diminished capacity which contributed to the offense and warranted a downward departure. Lastly, this court should remand the case to permit the district court to depart downward from the guidelines to account for the intervening changes in the Sentencing Commission's treatment of cocaine base. For these reasons, defendant respectfully requests the case be remanded for resentencing.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_____________________________

CARMEN D. HERNANDEZ

Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing Brief for Appellant xxxxxx xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

_________________________________

CARMEN D. HERNANDEZ

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief for Appellant xxxxxx xxxxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Section, Criminal Division, 555 Fourth Street, N.W., 10th Floor, Washington, D.C., 20001, this 14th day of July, 1995.

_________________________________

CARMEN D. HERNANDEZ

Assistant Federal Public Defender