TABLE OF CONTENTS



TABLE OF AUTHORITIES ii



JURISDICTION 1



ISSUE PRESENTED FOR REVIEW 2



STATUTES AND RULES 2



STATEMENT OF THE CASE 2



A. Nature of the Case, Course of Proceedings,

and Disposition in the Court Below 2



B. Statement of Facts 3



1. The Guilty Plea 3



2. The Sentencing 2



SUMMARY OF ARGUMENT 11



BECAUSE DRUG TYPE IS AN ELEMENT OF THE CRACK STATUTE,

IT WAS ERROR FOR THE DISTRICT COURT TO FIND MR. xxxxx

GUILTY OF, AND SENTENCE HIM FOR, DISTRIBUTION OF CRACK,

WHEN MR. xxxxx SPECIFICALLY DECLINED TO ADMIT THAT

THE DRUGS WERE CRACK AT HIS GUILTY PLEA. 12

A. Standard of Review 12



B. "Cocaine Base" In 21 U.S.C. 841 Means "Crack". 14



C. Since Drug Type Is An Element Under 841 (A

Statutory Fact That Increases The Statutory

Maximum), The District Court Could Not Find Mr.

xxxxx Guilty Of Violating The Crack Statute

( 841(b)(1)(A)(iii) - 10-Life for 50 Grams or

More - a Class A Felony) When Mr. xxxxx Only Admitted The Elements Of A Lesser Statute

( 841(b)(1)(C) - Maximum of 20 Years for Less

Than 500 Grams of Cocaine - a Class C Felony) 20



D. Although Mr. xxxxx Is Not Challenging The

Court's Preponderance Crack Finding For Purposes

Of Setting His Guidelines Range, For Purposes Of

His Statutory Penalties, Assuming The Court Was

Permitted To Find The Crack Element, It Could Only

Do So Under The Beyond A Reasonable Doubt Standard 27



CONCLUSION 30



TABLE OF AUTHORITIES



CASES



Sullivan v. Louisiana,

508 U.S. 275 (1993) 18



United States v. Cantu,

876 F.2d 1134 (5th Cir. 1989) 15



United States v. Cornett,

232 F.3d 570 (7th Cir. 2000) 15



United States v. Houser,

746 F.2d 55 (D.C. Cir. 1984) 18



United States v. Johnson,

231 F.3d 43 (D.C. Cir. 2000) 11, 17



United States v. Mendoza-Acevedo,

950 F.2d 1 (1st Cir. 1991) 20

United States v. Merlos,

8 F.3d 48 (D.C. Cir. 1993),

cert denied, 511 U.S. 1064 (1994) 18



United States v. Oquendo,

490 F.2d 161 (5th Cir. 1974) 16



*United States v. Rawlings,

73 F.3d 1145 (D.C. Cir. 1996) 11, 17, 19



United States v. Reed,

724 F.2d 677 (8th Cir. 1984) 16



United States v. Richter,

826 F.2d 206 (2d Cir. 1987) 14, 16



United States v. Segna,

555 F.2d 226 (9th Cir. 1977) 12



United States v. Stanfield,

521 F.2d 1122 (9th Cir. 1975) 16



*United States v. Vargas,

583 F.2d 380 (7th Cir. 1978) 12, 15, 17



United States v. (Leonard) Williams,

473 F.2d 507 (5th Cir. 1973) 16







UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________





No. 00-3077



_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



ALBARADO xxxxx, Defendant-Appellant.



_________________________________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



____________________________________________





BRIEF FOR APPELLANT



____________________________________________







JURISDICTION



The district court had jurisdiction over this criminal case under 18 U.S.C. 3231. A timely notice of appeal from the final judgment of the district court having been filed on August 11, 2000, this Court has jurisdiction over this appeal under 28 U.S.C. 1291 and 18 U.S.C. 3742(a).



ISSUE PRESENTED FOR REVIEW

Whether, under the reasoning of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), drug type is an element under 21 U.S.C.

841, such that it was error for the district court to convict and sentence Mr. xxxxx under the crack statute based solely on the court's own preponderance finding that the substance was crack when Mr. xxxxx specifically declined to admit the substance was crack at his guilty plea.

STATUTES AND RULES

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

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and

Disposition in the Court Below.



The charges in this case arose from an undercover drug buy made in December 1996. On September 9, 1997, a federal grand jury indicted appellant on one count of unlawfully distributing 50 grams or more of "cocaine base, also known as crack," in violation of 21 U.S.C. 841(a)(1) & 841(b)(1)(A)(iii) (Count One), and one count of doing so within 1,000 feet of a school, in violation of 21 U.S.C. 860(a) (Count Two). (Appx:6-7). (1)

Mr. xxxxx was arrested on October 26, 1999, and, two months later, on December 22, 1999, entered a plea of guilty to Count One, with the government agreeing to dismiss Count Two. On July 27, 2000, the Honorable Richard W. Roberts sentenced Mr. xxxxx to 120 months in prison and five years of supervised release. (Appx:38-44). Mr. xxxxx filed a timely notice of appeal. (Appx:45-46).

B. Statement of Facts

1. The Guilty Plea.

In his plea agreement with the government, Mr. xxxxx agreed to enter a plea of guilty to Count One of the indictment, distribution of 50 grams or more of cocaine base, in exchange for dismissal of Count Two (the schoolyard count) and various other promises from the government. (Appx:8-12). At the plea hearing, when the court summarized the charge in Count One as distribution of "cocaine base, also known as crack," defense counsel interjected to make clear that Mr. xxxxx was not prepared to admit that the substance was the particular form of cocaine base known as "crack":

MS. ALVA: Mr. xxxxx is prepared to plead guilty to Count 1 and that is distribution of cocaine base. The phrase "also known as crack," is something that Mr. xxxxx is not going to admit to and is not required under the statute.



THE COURT: Okay. When I said, "also known as crack," I guess I was lifting that from the charge in the indictment, but also paraphrasing how some believe cocaine base is also known as. But I do understand that you are proposing to plead guilty to Count 1 of the indictment insofar as it charges you with unlawfully knowingly and intentionally distributing cocaine base, at least, within the District of Columbia on, or about December 11th.

THE DEFENDANT: Yes.

(Plea Tr. 14-15) (emphasis added). The court then stated that, if it accepted the guilty plea, Mr. xxxxx "could be subject to a maximum sentence of life in prison" and "I would be required to impose a minimum sentence of ten years in prison." (Plea Tr:15). But when asked by the court to "tell me in your own words what your understanding is of how these sentencing guidelines might apply to you in your case" (Plea Tr. 17), Mr. xxxxx made clear that he did not understand that the 10-year minimum would necessarily apply:

That I have - based on the sentence that - plea I agreed to, that I'm looking at anywhere from ten years to life. Based on certain point schedules, there's a possibility that I might be able to get - you may be able to give me less than that, or - but no more than life. That's basically what I'm understanding.

(Plea Tr. 17) (emphasis added). (Likewise, the plea letter stated that Mr. xxxxx was to enter a plea to the charge in Count One and that he understood that "pursuant to [21 U.S.C.]

841(b)(1)(A)(iii), the charge carries a penalty of not less than ten years and not more than life imprisonment" (Plea Letter 1 (Appx:8)), but also clearly contemplated the possibility of a sentence below 10 years by providing that the government "will not object to a sentence at the low end of the applicable guideline range, provided that the low end of the range calls for a term of imprisonment of seventy months or longer" (Plea Letter 12 (Appx:10)) (emphasis added).)

The prosecutor then made a factual proffer in support of the plea:

Had the case against Mr. xxxxx proceeded to trial, the government would have shown beyond a reasonable doubt that between October and December of 1996, the defendant and a confidential police informant, acting under government auspices[,] engaged in several audiotaped conversations during which they discussed whether the defendant had any crack available for sale to the informant.



On October 10th, 1996, the defendant indicated that he had obtained a supply of crack and agreed to sell the informant some of that supply at a specific time and place. However, the defendant did not appear for that meeting and no sale occurred on that date.



On December 11th, 1996, Mr. xxxxx again made arrangements to sell a quantity of crack to the informant. Thereafter, Mr. xxxxx met the informant in the vicinity of the eleven hundred block of Eighth Street, Northeast, Washington, D.C. and sold the informant 55.4 grams of cocaine base, which is also known as crack, in exchange for one thousand, five hundred and forty dollars.



This sale was recorded by law enforcement officers on both audio and videotape.



THE COURT: Was this substance analyzed by the Drug Enforcement Administration?



[AUSA]: It was. It was analyzed to be 55.4 grams of cocaine base.

(Plea Tr:21-22).

At this point, defense counsel again made clear that Mr. xxxxx was not pleading to distribution of "crack":

MS. ALVA: Your Honor, if I could also again interject at this point, the government in its factual proffer on three occasions substituted the word "crack," or read the word, "crack," without the word "cocaine" and then ultimately described the analysis as 55.4 grams of cocaine base, also known as crack.



Mr. xxxxx is prepared to admit as reflected in the DEA 7 that he distributed 55.4 grams of cocaine base, but we are not admitting at this point that the substance was crack.

(Plea Tr:22). With that caveat, the court accepted Mr. xxxxx's plea of guilty to distribution of cocaine base. (Plea Tr:25-26).

2. The Sentencing.

The Presentence Report concluded that the offense involved 55.4 grams of "cocaine base, also known as crack" and therefore set Mr. xxxxx's base offense level at 32 pursuant to U.S.S.G. 2D1.1(c)(4). (PSR 19 (Sealed Appx:6)). With a three-level reduction for acceptance of responsibility bringing his offense level to 29, and 4 criminal history points putting him in Criminal History Category III, the PSR calculated Mr. xxxxx's guideline range as 108-135 months, adjusted to 120-135 months due to the 10-year mandatory minimum. (PSR 60 (Sealed Appx:14)).

In her objections to the PSR (Appx:15; Sealed Appx:20) and in her sentencing memorandum (Sealed Appx:25-27), defense counsel argued that the government had not proven that the substance was the "crack" form of cocaine base. Given that the DEA chemist's analysis had simply described the material as "off-white granular matter" containing "cocaine base," counsel objected to use of the base offense level for crack and to application of the 10-year mandatory minimum applicable to crack. (Sealed Appx:26-27, 36 (DEA-7)). Defense counsel argued that the base offense level for 50-100 grams of "cocaine" (U.S.S.G. 2D1.1(c)(12)) should apply, yielding a base offense level of 16, rather than 32. (Sealed Appx:27). (2) Counsel cited United States v. Munoz-Realpe, 21 F.3d 375, 377-79 (11th Cir. 1994), for the proposition that "cocaine base" under 21 U.S.C. 841(b)(1)(A)(iii) means "crack" (as it does under the sentencing guidelines (U.S.S.G. 2D1.1(c), Note D)), and, therefore, the 10-year mandatory minimum should not apply in this case. (Sealed Appx:27).

The government responded by arguing that (1) Mr. xxxxx admitted that he was subject to a 10-year mandatory minimum in the plea letter and during the plea colloquy; (2) the statutory term "cocaine base" is not limited to "crack" as it is for guidelines purposes; and (3) the material was "crack." (Appx:19-24).

At the sentencing hearing, the government put on testimony from the DEA chemist and one of the officers involved in the undercover buy. The chemist, Robert Kessler, was qualified as an expert in the field of forensic chemistry. (Sent'g Tr:5). He testified that cocaine base can come in the form of a paste, be dissolved in liquid, be ground up, or be put into "almost any form that a substance can appear in." (Sent'g Tr:5). In the laboratory, he most commonly sees cocaine base in a "granular" form (as it was in this case). (Sent'g Tr:5, 7). He explained that he uses the term "granular" to describe a substance having a consistency like salt (Sent'g Tr:16-17), but also testified that what he refers to as "granular matter" is "commonly referred to as rocklike substance" and that the "street name" for cocaine base in that form is "crack cocaine." (Sent'g Tr:5-6). See also Sent'g Tr:7 (DEA-7 description of substance in this case as being "off-white granular matter" is description he uses "for substances that I determine to be cocaine base, or crack cocaine."); Sent'g Tr:23 (substance he analyzed is commonly referred to as "crack cocaine"). But see Sent'g Tr:11 ("crack is a street term. I, as a chemist, don't really use that now"); Sent'g Tr:13 ("I would never call [something] crack cocaine because I am a scientist and then that is a street term"). He testified that the exhibit in this case contained 55.4 grams of "cocaine base" with a purity of 87%. (Sent'g Tr:8). He found no trace of sodium bicarbonate or other substance used to convert cocaine hydrochloride (powder cocaine) to cocaine base. (Sent'g Tr:8, 13-15).

Investigator Clarence Brooks of the Metropolitan Police Department testified that he observed and listened to the undercover buy from another car. (Sent'g Tr:27). Afterwards, he performed a field test on the purchased substance that showed a positive color reaction for "cocaine." (Sent'g Tr:27, 34). In the DEA-7 he prepared for submission to the laboratory, he described it as "several large white rock matter" and, in the column for "alleged drugs," he put "crack cocaine." (Sent'g Tr:29-30, 34; Sealed Appx:36). Although he testified that the substance was "smokeable" and is "commonly referred to on the street" as "crack cocaine" (Sent'g Tr:30, 37), he also acknowledged that "I couldn't tell you what the substance actually is. All I know, I conducted a preliminary field-test which yielded a positive color reaction for cocaine." (Sent'g Tr:35). Brooks also acknowledged that, while the confidential informant asked for "crack," Brooks did not think that Mr. xxxxx ever used that word. (Sent'g Tr:36).

The defense argued that because of the disproportionate impact a "crack" finding would have on Mr. xxxxx's sentence, the court should hold the government to a clear and convincing standard of proof, rather than the preponderance standard ordinarily used in finding facts for purposes of sentencing. (Sent'g Tr:41, 48). The court ruled that the appropriate burden of proof was the preponderance standard, not the clear and convincing standard (Sent'g Tr:54, 57), and found that the government had met its burden of proving by a preponderance that the substance in question was crack. (Sent'g Tr:55-56). (3)

All parties appear to have assumed that, once the court determined that the material was "crack" for guidelines purposes, the 10-year mandatory minimum of 841(b)(1)(A)(iii) applied. See Sent'g Tr:49 (prosecutor arguing that, if court found material to be "crack," it need not reach argument that defendant admitted 10-year minimum applied or argument that 10-year minimum applies to forms of cocaine base other than "crack"); Sent'g Tr:56 (defense counsel referring to "court's finding that the substance is crack and that the mandatory minimum applies"). (4)

Thus, after the court's finding that the substance was "crack," it concluded that the mandatory minimum would apply and that the guideline range of 108-135 would have to be modified to 120-135. See Sent'g Tr:75 ("having found that the substance was the crack form of cocaine base, we are within the statutory mandatory minimum such that even the calculation of the [108] at the low end under the guidelines has to be subject then to being replaced with the floor of [120] months that's called for by the statutory mandatory minimum"). Because Mr. xxxxx had too many criminal history points to be eligible for the safety valve, the court was not able to consider a downward departure based on Mr. xxxxx's medical condition, which the court noted might otherwise be available. (Sent'g Tr:75-76). Noting that it was "handcuffed in what I can or cannot do," the court imposed what it believed was statutorily required - a 10-year mandatory minimum sentence. (Sent'g Tr:80). The court also ordered five years of supervised release. (Sent'g Tr:81). Mr. xxxxx filed a timely notice of appeal. (Appx:45-46).

SUMMARY OF ARGUMENT

Because "cocaine base" under 21 U.S.C. 841(b)(1)(A)(iii) means "crack," and because under the reasoning of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), drug type is an element of the offense (since it is a statutory fact that increases the defendant's statutory maximum), Mr. xxxxx, by declining to admit that the material at issue was "crack," entered a plea to

841(b)(1)(C), rather than to the greater offense of

841(b)(1)(A)(iii) on which the court entered judgment.

Because Mr. xxxxx did not knowingly waive his right to jury trial on the crack element at the time of his plea (indeed, because the plea was entered pre-Apprendi, no one knew that drug type was an element), it is now plain that the court violated his jury trial and due process rights when it found the element and convicted and sentenced him under 841(b)(1)(A)(iii). Because Mr. xxxxx's sentence is greater than it would have been if he had been convicted and sentenced under 841(b)(1)(C) (both because his guideline range fell below what the court erroneously believed to be the statutory minimum prison term and because his supervised release term exceeds the correct statutory maximum), he has shown prejudice sufficient to require a remand for correction of his judgment and resentencing.

In the alternative, assuming the court was permitted to find the crack element, it erred in applying a mere preponderance standard. Although we do not challenge the court's preponderance finding of crack for purposes of the sentencing guidelines, Apprendi requires that, for purposes of convicting Mr. xxxxx of an offense with a higher statutory maximum, the crack element had to be found beyond a reasonable doubt. Therefore, at a minimum, the case must be remanded for the district court to determine whether the drugs have been shown to be crack beyond a reasonable doubt and, if they have not, for resentencing under

841(b)(1)(C).

ARGUMENT

BECAUSE DRUG TYPE IS AN ELEMENT OF THE CRACK STATUTE,

IT WAS ERROR FOR THE DISTRICT COURT TO FIND MR. xxxxx GUILTY OF, AND SENTENCE HIM FOR, DISTRIBUTION OF CRACK,

WHEN MR. xxxxx SPECIFICALLY DECLINED TO ADMIT THAT

THE DRUGS WERE CRACK AT HIS GUILTY PLEA.

A. Standard Of Review.



Defense counsel consistently challenged the government's claim that the material at issue was "crack," preserved the argument that the term "cocaine base" in 21 U.S.C.

841(b)(1)(A)(iii) means "crack" (as it does for guidelines purposes), and argued that the drug type finding must be made by a standard greater than a mere preponderance. (Plea Tr:14-15, 22; Appx:15; Sealed Appx:20, 25-27; Sent'g Tr:41-49, 60-61).

Defense counsel also noted that, under Apprendi, which had been decided only one month before Mr. xxxxx's sentencing and had not been decided at the time his sentencing memorandum had been filed, facts that enhance a defendant's sentence are elements that must be proved to a jury beyond a reasonable doubt. See Sent'g Tr:60-61. She relied on Apprendi as support for her argument that the court could not apply a mere preponderance of the evidence standard in making the drug type finding. (Sent'g Tr:61).

The only part of Mr. xxxxx's current argument not made by defense counsel below is the argument that - given her argument that drug type is an element - it would violate Mr. xxxxx's jury trial right for the court to convict and sentence him under a statute containing that disputed element. As to this part of Mr. xxxxx's argument only, review is for "plain error." Under that standard, this Court reverses if it finds 1) an unwaived legal error, 2) that is "plain" or "obvious" under current law, and 3) that was prejudicial to the defendant. United States v. Rawlings, 73 F.3d 1145, 1148 (D.C. Cir. 1996) (citing United States v. Olano, 507 U.S. 725 (1993)). Because this error simply requires a resentencing (and correction of Mr. xxxxx's judgment), the prejudice requirement is relaxed as compared to a case in which a new trial is being sought. See United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994) ("[i]n the special context of sentencing errors," the plain error prejudice requirement is not as "exacting" as it is in the context of trial errors; "problem of finality is lessened" in the sentencing

context "for a resentencing is nowhere near as costly or as chancy an event as a trial").

B. "Cocaine Base" In 21 U.S.C. 841 Means "Crack."



As argued by defense counsel below, "cocaine base" as used in the federal drug statutes means "crack" (as it does in the Sentencing Guidelines).

In 21 U.S.C. 841(b), Congress set up a system of drug offenses that provides varying penalties depending upon the type of the drug at issue, punishing "cocaine [or] its salts" less severely than the same amount of "cocaine base." For example,

841(b)(1)(A) provides a penalty of 10-life in a case involving (emphasis added):

(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of --



(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;



(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;



. . .



(iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;



It is a scientific fact that "cocaine" and "cocaine base" are simply two different words for the same chemical substance (C17H21NO4) and that chemists use the terms "cocaine" and "cocaine base" interchangeably. See, e.g, United States v. Booker, 70 F.3d 488, 490 (7th Cir. 1995) (taking judicial notice that "[b]ecause cocaine is a base, the phrase 'cocaine base,' in scientific terms, is redundant. To a scientist, 'cocaine' and 'cocaine base' are synonymous."), cert. denied, 517 U.S. 1111 (1996); United States v. (Darryl) Jackson, 84 F.3d 1154, 1160 (9th Cir.) ("[government] concedes that, to a chemist, cocaine and cocaine base are the same substance"), cert. denied, 519 U.S. 986 (1996). (5) Here, chemist Kessler stated during cross-examination that "cocaine base is cocaine." (Sent'g Tr:11). (6)

In light of the fact that "cocaine base" is simply another term for plain "cocaine," there is a facial ambiguity in Congress's attempt to treat "cocaine base" more harshly than "cocaine [or] its salts." By referring to the "salts" of cocaine in 841(b)(1)(A)(ii)(II), Congress clearly intended to punish powder cocaine at the lower penalty level. What is ambiguous is Congress's inclusion of the same substance -- "cocaine" and "cocaine base" -- in both penalty levels. Clearly, Congress did not intend to punish all forms of cocaine base at the higher level or it would not have also included that substance in the lower level under the label "cocaine." Courts have avoided this ambiguity (and the application of the rule of lenity) by looking to the structure of the statute and its legislative history and determining that, when Congress provided enhanced penalties for "cocaine base" it was not referring to all forms of cocaine base (which are already covered under the penalty provision for "cocaine"), but only to the form of cocaine base known as "crack cocaine."

In United States v. Fisher, 58 F.3d 96 (4th Cir.), cert. denied, 516 U.S. 927 (1995), the Fourth Circuit held:

[T]he only rational interpretation that we can give this statute as a whole is to conclude that clause (ii) addresses cocaine powder and the other forms of cocaine identified therein, except for "crack" cocaine which is expressly separately addressed in clause (iii). . . . [O]ur interpretation is confirmed by the legislative history of the statute [which] demonstrates that Congress intended, with the enactment of clause (iii), to penalize more severely violations involving crack cocaine.



Id. at 99 (emphasis added). In Booker, 70 F.3d at 492-94, the Seventh Circuit followed Fisher (emphasis added):

The history of the ADAA [Anti-Drug Abuse Act of 1986] reveals that Congress was targeting crack cocaine when it passed the stiffer sentencing provisions for "cocaine base." . . . We agree with the Fisher court's reasoning. . . . [I]t 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. . . . Thus, we hold that the sentencing provisions for "cocaine" and "cocaine base" 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.



See also (Darryl) Jackson, 84 F.3d at 1159-60 (rejecting rule of lenity because, as government argued, "'Congress intended "cocaine base" to mean crack.'") (quoting Booker, 70 F.3d at 493); United States v. (Allen) Jackson, 64 F.3d 1213, 1219 (8th Cir. 1995), cert. denied, 516 U.S. 1137 (1996) (rejecting rule of lenity because "It was clear to Congress, just as it always has been clear to cocaine traffickers and cocaine users, that there are important differences between cocaine and crack cocaine, the latter being the only form of cocaine base to which the stiffer penalties formulated by the Sentencing Guidelines apply") (citing U.S.S.G. 2D1.1(c) (1993))(emphasis added).

In United States v. Edwards, 98 F.3d 1364, 1369 (D.C. Cir. 1996), cert. denied, 520 U.S. 1170 (1997), this Court "join[ed]" Fisher, Booker, (Darryl) Jackson, and (Allen) Jackson, finding no ambiguity in the terms "cocaine" and "cocaine base" because there was "ample support to conclude that Congress intended the stiffer penalties associated with 'cocaine base' to apply to offenses involving crack cocaine and the less severe penalties to apply to offenses involving powder cocaine." Id. (emphasis added). (7)

The prosecutor acknowledged at the sentencing hearing that "[Congress] intended by the statute to punish more severely crack cocaine" and that "it's clear from the legislative history that that's what they were after and they were after a smokeable form of cocaine . . . ." (Sent'g Tr:50-51). The prosecutor argued, however, that although "Congress did in the legislative history intend to punish more harshly crack cocaine," they chose to use the broader "chemical term 'cocaine base,'" and therefore "the term should be given its scientific meaning." (Sent'g Tr:53). The problem with this "scientific" reading of the term "cocaine base" is that it renders the statute ambiguous in that it already provides a lesser penalty for a substance - "cocaine" - that has the very same scientific meaning. As recognized by Fisher, Booker, (Darryl) Jackson, and (Allen) Jackson, the statute only makes sense if "cocaine base" is interpreted in accord with what the government has acknowledged was Congress's legislative intent to single out the "crack" form of cocaine base for harsher punishment.

In response to an inter-circuit conflict over the meaning of "cocaine base," the Sentencing Commission clarified in 1993 that "cocaine base" should not be given its scientific meaning, but rather should be limited to the substance with the street name "crack:"

"Cocaine base," for the purposes of [guideline

2D1.1], 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 to Drug Quantity Table (Amendment 487). (8) The Eleventh Circuit in United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994), relied on this Amendment in reversing its earlier position and holding that "cocaine base" means "crack" for purposes of the drug statutes:

By allowing the amendment to take effect, Congress has given its imprimatur to the new definition of "cocaine base"; Congress indicated that it intends the term "cocaine base" to include only crack cocaine. . . . There is no reason for us to assume that Congress meant for "cocaine base" to have more than one definition.



Id. at 377-78.

Thus, in order to avoid statutory ambiguity, and consistent with Congress's original legislative intent, and its subsequent action in allowing Amendment 487 to take effect, it is necessary to read the statutory term "cocaine base" to be limited to that form of cocaine base known as "crack."



C. Since Drug Type Is An Element Under 841 (A Statutory Fact That Increases The Statutory Maximum), The District Court Could Not Find Mr. xxxxx Guilty Of Violating The Crack Statute ( 841(b)(1)(A)(iii) -

10-Life for 50 Grams or More - a Class A Felony) When Mr. xxxxx Only Admitted The Elements Of A Lesser Statute ( 841(b)(1)(C) - Maximum of 20 Years for Less Than 500 Grams of Cocaine - a Class C Felony).



After the guilty plea in this case, but shortly before sentencing, the Supreme Court decided Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Apprendi, like this case, involved a guilty plea to a crime with a lesser penalty range than the crime for which the trial court ultimately sentenced the defendant. The Apprendi Court held that, under the Constitution's due process and jury trial guarantees, "'facts that increase the prescribed range of penalties to which a criminal defendant is exposed'" must be assessed by the jury and must be found beyond a reasonable doubt. 120 S. Ct. at 2363 (quoting concurring opinion in Jones v. United States, 526 U.S. 227, 252-53 (1999)) (emphasis added). Put another way, when a fact "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict," such fact "is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." Id. at 2365 & n.19 (emphasis added). As such, it cannot be found by the court, but must be found by a jury beyond a reasonable doubt, or admitted by the defendant as part of a guilty plea to the greater crime.

In Apprendi, the defendant pleaded guilty to possession of a firearm for an unlawful purpose (a second-degree offense carrying a prison term of 5-10 years). But because the sentencing court found as fact that the crime was motivated by racial bias, it applied New Jersey's hate-crime statutory enhancer, increasing the penalty range to 10-20 years (the same as for a first-degree offense). The Supreme Court held that because the fact of racial bias increased the statutory maximum to which Apprendi was exposed, it was the functional equivalent of an element and therefore could not be found by the sentencing court.

Likewise here, Mr. xxxxx pleaded guilty to possession of 55.4 grams of "cocaine base" (a Class C felony carrying a prison term of 0-20 years (9) and a supervised release term of 3 years (10) under 841(b)(1)(C)). Because the sentencing court found as fact that the cocaine base was in the form of "crack," it applied the crack enhancer of 841(b)(1)(A)(iii), increasing the penalty range to 10-life (making the crime a Class A felony carrying a supervised release term of 5 years). Because the drug type finding increased the statutory maximum to which Mr. xxxxx was exposed, that fact was the functional equivalent of an element and, under Apprendi, was not subject to a finding by the court. By finding that element, the district court effectively found Mr. xxxxx guilty of a crime (distribution of crack in violation of 841(b)(1)(A)(iii)) greater than that to which he pleaded guilty (distribution of a controlled substance in violation of

841(b)(1)(C)).

This error qualifies as "plain error" because it is both obvious and prejudicial. Defense counsel disputed that the material was crack, argued that the enhanced statutory penalties of 841(b)(1)(A)(iii) should not be applied, and argued that, under Apprendi, facts that enhance a sentence are elements that must be found by a jury beyond a reasonable doubt. While counsel did not take the next step and argue that the court was therefore precluded from finding the crack element itself, that conclusion is now plain.

"Plainness" is determined as of the time of appeal. Johnson v. United States, 520 U.S. 461, 468 (1997). Under Apprendi itself, which also arose in the context of a guilty plea, it is now plain that judges cannot find facts - such as drug type - that increase a defendant's statutory maximum sentence because such facts are elements. Indeed, since Mr. xxxxx's sentencing, the courts have been unanimous in holding that, under Apprendi's reasoning, drug type and quantity - as statutory facts that increase a defendant's statutory maximum - are elements of

841 that must be found by a jury. See, e.g., United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000); United States v. Nordby, 225 F.3d 1053, 1059-62 (9th Cir. 2000) (finding sentencing judge's determination of drug quantity plain error). See also Meshack, 225 F.3d at 575 (Fifth Circuit not reaching issue since government conceded Apprendi rule applies to 841). Quite obviously, a court accepting a guilty plea cannot convict a defendant of an offense greater than that to which he pleaded guilty based on the court's finding of an additional element - at least absent a knowing waiver of the right to jury trial on that element.

In United States v. Rebmann, 226 F.3d 521 (6th Cir. 2000), a similar situation arose. The defendant pleaded guilty to distribution of heroin in violation of 841(b)(1)(C) with a maximum sentence of 20 years, but her plea agreement expressly provided that, if the judge found that a death resulted from her distribution, her maximum sentence would go up to life. After a hearing, the court found by a preponderance of the evidence that her ex-husband's death was the result of her distribution and therefore sentenced her under the "death resulting" portion of

841(b)(1)(C). On appeal, Rebmann argued that the "death resulting" determination should have been made using the beyond a reasonable doubt standard. The Sixth Circuit concluded:

Our duty, in light of [Apprendi's] clear dictate . . ., is to examine whether the sentencing factor in this case was a factual determination, and whether that determination increased the maximum penalty for the crime charged in the indictment. We find that the statute at question here today, 21 U.S.C. 841, provides for a factual determination of whether the distribution of drugs caused death or serious bodily injury, and that the factual determination significantly impacts the sentence imposed by the court, increasing the maximum penalty from 20 years to that of life imprisonment. We conclude that pursuant to her plea agreement, Rebmann waived her right to a jury trial of the issue of whether her distribution of heroin caused the death. However, we find that Rebmann did not waive the right to have a court decide any remaining elements of the offense beyond a reasonable doubt, as opposed to making those determinations by a mere preponderance of the evidence. Because the provisions at issue are factual determinations and because they increase the maximum penalty to which Rebmann was exposed, we find that they are elements of the offense which must be proven beyond a reasonable doubt.



226 F.3d at 524-25 (emphasis added). Unlike the defendant in Rebmann, Mr. xxxxx did not make a knowing waiver of his right to jury trial on the drug type element. His plea agreement did not expressly provide that the judge would be making that finding and did not explain that his statutory maximum would go up if the court concluded that the material was "crack." Indeed, it is difficult to see how a defendant could knowingly waive his right to jury trial on an element that the law did not recognize as an element at the time of his plea.

In the plea letter, Mr. xxxxx agreed to enter a plea to a violation of 841(b)(1)(A)(iii), and acknowledged his understanding that that charge carried a statutory maximum of life. Because Mr. xxxxx declined at the plea hearing to admit that the substance was crack, however, no such plea was entered. What matters is not what offense the parties thought Mr. xxxxx was pleading guilty to, but what offense he actually pleaded guilty to, i.e., what elements he was told he was charged with and did, in fact, admit. See Fed. R. Crim. P. 11(c)(1) (defendant must be told "nature of charge to which the plea is offered"); Fed. R. Crim. P. 11(f) (court may not enter judgment upon plea absent factual basis for plea). Cf. United States v. DeWalt, 92 F.3d 1209, 1212-14 (D.C. Cir. 1996) (although defendant attempted to plead guilty to possession of unregistered sawed-off shotgun, this Court vacated conviction under Rule 11(c)(1) where failure to inform him of one of the elements was raised for first time on appeal); United States v. Idowu, 105 F.3d 728, 729-32 (D.C. Cir. 1997) (although defendant attempted to plead guilty to 8 U.S.C. 1326(a), this Court allowed him to withdraw plea when appellate counsel discovered legal argument that 1326 violation required fact that defendant did not admit and he had therefore "pled guilty to something that may not be a crime"). Here, Mr. xxxxx did plead guilty to a crime, but it was a lesser crime than the one the court convicted him of and nowhere in the plea colloquy did he agree to allow the court to do so.

Thus, absent a knowing waiver of the right to jury trial on the disputed element (like that found in Rebmann), it is plain that the district court was without authority to find that element (under any standard of proof) and to thereby convict and

sentence Mr. xxxxx for a crime greater than that to which he pleaded guilty.

Likewise, Mr. xxxxx can demonstrate that the court's error in finding the crack element caused him prejudice. As a result of the court's finding of that disputed element, he was sentenced under 841(b)(1)(A)(iii) to a mandatory minimum term of 120 months. But for the court's finding of that element, he would have been sentenced at the guideline range of 108-135 months, (11) or possibly below that range if the court had accepted his downward departure arguments (which became moot when the court ruled that the statutory minimum applied). Moreover, he was sentenced to the statutory maximum supervised release period for a Class A felony (5 years), when he should have been sentenced to the statutory maximum for a Class C felony (3 years). This is not a situation in which the element at issue was uncontested and thus the failure to obtain a jury finding (or formal admission) on the element could be considered harmless beyond a reasonable doubt. Cf. Neder v. United States, 527 U.S. 1 (1999) (failure to instruct jury on element harmless where element was not disputed). Mr. xxxxx's failure to admit the crack element was not a technical oversight but a result of his consistent denial that the material was crack. The court's finding of that element in the face of that denial impaired Mr. xxxxx's right to a jury trial and due process and caused him substantial prejudice in the form of a more severe sentence than he would otherwise have received.

For these reasons, Mr. xxxxx's conviction under

841(b)(1)(A)(iii) must be vacated with instructions to enter judgment under 841(b)(1)(C), and resentence him under that statute to between 0 and 20 years in prison with 3 years of supervised release.

D. Although Mr. xxxxx Is Not Challenging The Court's Preponderance Crack Finding For Purposes Of Setting His Guidelines Range, For Purposes Of His Statutory Penalties, Assuming The Court Was Permitted To Find The Crack Element, It Could Only Do So Under The Beyond A Reasonable Doubt Standard.



In the alternative, if this Court concludes that Mr. xxxxx, like the defendant in Rebmann, waived his right to jury trial on the disputed element, a remand is nevertheless necessary since it is clear under Apprendi and Rebmann that the district court erred in evaluating the crack element under a mere preponderance of the evidence standard. Under those cases, if the court is permitted to find the crack element at all, it may do so only if it concludes that the material was crack beyond a reasonable doubt.

Because this claim was fully preserved by defense counsel, (12) a remand is required unless the government can establish that the court's error was harmless beyond a reasonable doubt. That it cannot do. Whether the cocaine base was in the form of "crack" was a hotly disputed issue at sentencing. As in Rebmann, the evidence was sufficiently ambiguous that it is possible that the court could have found that the material was crack under the preponderance standard, yet not be convinced of that fact beyond a reasonable doubt (or even by clear and convincing evidence). See Rebmann, 226 F.3d at 522 (proof that defendant's heroin distribution caused ex-husband's death was of such a nature that "elevating the government's burden of proof from that of preponderance of the evidence to reasonable doubt could in fact [a]ffect the outcome of this case").

Specifically, the DEA-7 is ambiguous in that the officer who submitted the substance described it as "several large white rock matter" (Sealed Appx:36), yet the chemist who analyzed it described it as "granular matter" (id.) and testified that, by "granular," he meant a substance with the consistency of salt (Sent'g Tr:16-17). The chemist's description does not meet the description of crack set forth in the guidelines, which notes that it "usually appear[s] in a lumpy, rocklike form." U.S.S.G.

2D1.1(c), Note D to Drug Quantity Table. In addition, although the chemist testified that crack is prepared by processing cocaine hydrochloride (powder cocaine) with sodium bicarbonate or some other base substance, he found no trace of any such conversion material in the cocaine base he analyzed. See also

2D1.1(c), Note D (crack is "usually prepared by processing cocaine hydrochloride and sodium bicarbonate").

Moreover, the chemist's testimony as to whether the substance was "crack" had to be considered in light of his undisputed testimony that, from the standpoint of chemical composition (his area of expertise), crack and cocaine base are identical, and his disclaimer that "I would never call [something] crack cocaine because I am a scientist and that is a street term" (Sent'g Tr:13). Conversely, the police officer qualified his testimony by acknowledging, "I couldn't tell you what the substance actually is. All I know, I conducted a preliminary field-test which yielded a positive color reaction for cocaine." (Sent'g Tr:35). Given this state of the record, the government cannot show beyond a reasonable doubt that the district judge would have found the material to be crack if it had applied the beyond a reasonable doubt standard. At a minimum, therefore, a remand for that purpose is required. See Rebmann, 226 F.3d at 525 (remanding for determination whether Leonard Rebmann's death was caused by defendant's distribution of heroin beyond a reasonable doubt).

CONCLUSION

For the foregoing reasons, Mr. xxxxx's conviction under

841(b)(1)(A)(iii) must be vacated and the case remanded for resentencing under 841(b)(1)(C). Failing that, the case must be remanded for the sentencing court to evaluate the drug type evidence under the beyond a reasonable doubt standard and, if the court does not find that the substance was "crack" beyond a reasonable doubt, vacation of his 841(b)(1)(A)(iii) conviction and resentencing under 841(b)(1)(C).





Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER





_____________________________

LISA B. WRIGHT

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Albarado xxxxx





CERTIFICATE OF LENGTH



I hereby certify that the foregoing Brief for Appellant Albarado xxxxx contains 7966 words.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender









CERTIFICATE OF SERVICE



I hereby certify that two copies of the foregoing Brief for Appellant Albarado xxxxx have been served by first-class mail, and one copy of the accompanying Appendix, and one copy of the accompanying Sealed Appendix, have been served by hand on Assistant United States Attorney John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., 8th Floor, Washington, D.C., 20001, this 2nd day of March, 2001.



_________________________________

LISA B. WRIGHT

Assistant Federal Public Defender

1. "Appx:__" refers to pages of Appellant's Appendix filed with this brief. "Sealed Appx:__" refers to pages of Appellant's Sealed Appendix, which contains his Presentence Report, sealed Sentencing Memorandum, and letters submitted for his sentencing. Pages of the guilty plea transcript are cited as "Plea Tr:__." Pages of the sentencing transcript are cited as "Sent'g Tr:__."

2. Counsel also argued that Mr. xxxxx's Criminal History Category should be I, rather than III, an issue not part of this appeal.

3. The court noted that the government had sustained its burden "beyond just a preponderance" and offered to further quantify its finding, but neither party requested any additional finding. (Sent'g Tr:55, 57-58).

4. Defense counsel did argue that, under the recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), facts that enhance a sentence are "elements" that must be found by a jury beyond a reasonable doubt. However, she used Apprendi to argue that the judge must apply an enhanced standard of proof to its crack finding before applying the enhanced statutory penalties, rather than to argue that the court could not apply the enhanced statutory penalties at all since it would be unconstitutional for the court to find an element and thereby convict and sentence a defendant on a crime greater than that to which he pleaded guilty. See Sent'g Tr:60-61 (defense counsel arguing that, under Apprendi, "if it enhances [the] sentence, then it's an element of the offense where a jury has to . . . find it beyond a reasonable doubt;" Apprendi therefore supports argument "that if you are going to use a fact to enhance a sentence, and in this case we are talking about . . . for purposes of a mandatory minimum sentence, that the proof must be higher and that it should not be simply preponderance of the evidence").

5. Booker and other courts have relied on the testimony in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994), in which three experts - one DEA chemist, one expert called by the court, and a defense expert - all agreed that the terms "cocaine" and "cocaine base" are synonymous. 70 F.3d at 490.

6. Because cocaine/cocaine base is a base, it reacts with acids to produce "salts." For example, what is popularly known as "powder cocaine" is in fact a cocaine "salt" -- cocaine hydrochoride (C17H22ClNO4) -- that is formed by reacting hydrochloric acid with cocaine/cocaine base. See, e.g., Booker, 70 F.3d at 490-91. As explained by chemist Kessler in this case, "cocaine base would have a certain number of carbon[s,] hydrogens, nitrogens, and oxygens. And cocaine hydrochloride would have the same number of carbon[s,], hydrogens, nitrogens, and oxygens, plus an [H]Cl molecule . . . which is a [hydro]chloride molecule." (Sent'g Tr:18). The "crack" form of cocaine base is made by adding water and a base substance such as sodium bicarbonate to powder cocaine to create a solution with a basic pH level, which frees up the hydrochloride molecule, leaving behind the insoluble cocaine/cocaine base, which is extracted in the "crack" form by air-drying or microwaving the solution. (Sent'g Tr:8-9, 13-14, 18).

7. The argument made in Edwards was apparently that the statutory terms "cocaine" and "cocaine base" are ambiguous because "cocaine base and powder cocaine are pharmacologically indistinguishable." 98 F.3d 1368 (emphasis added). This argument was based on an incorrect factual premise (in fact, cocaine powder is C17H22ClNO4; cocaine and cocaine base are C17H21NO4), but presumably the Court would have resolved the problem the same way - by limiting the term "cocaine base" to "crack" - if the argument had been made correctly, i.e., the statutory terms "cocaine" and "cocaine base" are ambiguous because those substances are pharmacologically indistinguishable.

8. Indeed, even before Amendment 487, the guidelines equated "cocaine base" with "crack." See 2D1.1, Application Note 10 (Drug Equivalency Tables) ("1 gm of Cocaine Base ('Crack') = 20 kg of marihuana").

9. Because he did not admit the substance was "crack," and because the amount was under the 500 gram cutoff for an enhanced sentence for "cocaine" ( 841(b)(1)(B)(ii)), Mr. xxxxx's plea did not subject him to a statutorily enhanced sentence but was simply a plea to distribution of "a controlled substance in schedule I or II" in violation of 841(b)(1)(C).

10. Under 841(b)(1)(C), the supervised release term authorized is "at least 3 years," but under 18 U.S.C.

3583(b)(2), "[e]xcept as otherwise provided," the supervised release for a Class C felony (one with a statutory maximum of between 10 and 25 years (18 U.S.C. 3559(a)(3)) is limited to "not more than three years." Therefore, in cases such as this one where the violation of 841(b)(1)(C) carries a 20-year maximum, the supervised release minimum and maximum is 3 years. See United States v. Meshack, 225 F.3d 556, 578 (5th Cir. 2000) (plain Apprendi error required reduction of supervised release from 5 years to statutory maximum of 3 years under

841(b)(1)(C)), cert. denied, 121 S. Ct. 834 (2001). The phrase "at least" is not superfluous because a violation of

841(b)(1)(C) where death or serious injury results carries a 20-life sentence, making it a Class A felony ( 3559(a)(1)) subject to as much as 5 years of supervised release

( 3583(b)(1)).

11. Mr. xxxxx is not appealing the court's finding by a preponderance that the material was "crack" for purposes of the Sentencing Guidelines. The Supreme Court in Apprendi made clear that courts may consider such facts when choosing a sentence within an authorized statutory range. Apprendi, 120 S. Ct. at 2365 n.19. See also McMillan v. Pennsylvania, 477 U.S. 79, 87-88 (1986) (judge could find fact as "sentencing factor" where, unlike here, it "did not alter the maximum penalty for the crime committed" but "operate[d] solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it").

12. Defense counsel clearly objected to the court's use of the preponderance standard for the purposes of either the guidelines or the statute. On appeal, we do not press the guidelines claim but have shown that the court erred in enhancing Mr. xxxxx's statutory penalties based on a fact found by a mere preponderance. Since that objected-to error requires a remand, it does not matter that counsel initially requested a clear and convincing standard of proof (Sent'g Tr:41) and only later brought Apprendi's reasonable doubt standard to the court's attention (Sent'g Tr:60-61). On remand, the court should apply the constitutionally required standard of proof beyond a reasonable doubt.