UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
v. : Cr. No. 94-017 (CRR)
:
xxxxxxxxxxxx, :
:
Defendant. :
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
AND INCORPORATED MEMORANDUM OF FACTS AND LAW
Defendant xxxxxxxxx, through counsel, respectfully moves this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence he received in this case. As grounds for his Motion, Mr. xxxxxxx states as follows:
1. This Motion is based upon all the files, records and proceedings in this case.
2. On January 11, 1994, a seven-count indictment was filed against Mr. xxxxxxx. Count One charged possession with intent to distribute more than fifty grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); Count Two charged possession of a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c); Count THree charged possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k); Count Four charged possession of a firearm by one previously convicted of a felony, in violation of 18 U.S.C. § 922(g); and Counts Five through Seven charged firearms and ammunitions violations of the D. C. Code.
3. On March 30, 1994, Mr. xxxxxxx pled guilty, pursuant to a written plea agreement, to Counts One and Two of the indictment. 4. On June 30, 1995, Mr. xxxxxxx was sentenced to a term of imprisonment of ten years on Count One and a consecutive term of five years on Count Two. All other counts in the indictment were dismissed at sentencing as part of the plea agreement.
5. There have been no petitions, applications, motions or proceedings filed or maintained by Mr. xxxxxxx in any other federal court with respect to the judgment entered in this case.
6. For the reasons set forth below, Mr. xxxxxxx prays that this Court set aside his convictions and sentence in this case.(1)
MEMORANDUM OF FACTS AND LAW
I. INTRODUCTION
Willie xxxxxxx challenges as illegal the sentence imposed upon him in the instant case, on the grounds that there was no factual basis to support his plea of guilty to Counts One and Two of the indictment. The government made no proffer or showing, either at or prior to imposition of sentencing in this case, that the cocaine base referred to in Count One was crack cocaine. Such a showing is required under United States v. James, 78 F.3d 851, 858 (3d Cir. 1996). Moreover, because the government has never complied with the scheduling requirements of 21 U.S.C. §841 in classifying cocaine base as a controlled substance, possession of cocaine base is not a crime. With regard to Count Two of the indictment, the government made no showing that Mr. xxxxxxx used or carried the firearm which he had in his possession in connection with the drug trafficking offense of possession with intent to distribute cocaine base. All that the government proffered at the plea or at sentencing was that Mr. xxxxxxx had a gun hidden in his waistband at the time of his arrest for the drug offense. Mere possession of the gun, without some indication that Mr. xxxxxxx intended to use the gun to further the drug crime, was insufficient, under Bailey v. United States, 116 S.Ct. 501 (1995).
II. THERE WAS NO PROOF THAT THE SUBSTANCE POSSESSED
BY MR. xxxxxxx WAS "CRACK" COCAINE.
In establishing the statutory penalties for cocaine offenses, "Congress adopted a 100:1 ratio as between amounts of cocaine powder and cocaine base, generally known as crack." United States v. Anderson, 82 F.3d 436, 437 (D.C. Cir. 1996). The Court of Appeals has recently oberved that
The 100:1 ratio has been subject to severe attack,
particularly because the use and marketing of cocaine
powder and crack appear to follow a racial fault line,
with blacks being characteristically subject to far
more draconian crack penalties. The widespread
concern has led to an exchange between Congress
and the Sentencing Commission, as yet inconclusive. . . .
Id.
In 1993, the Sentencing Commission amended the notes following the Drug Quantity Table by inserting a definition for cocaine base:
"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), n. D. The Third Circuit has recently found that unless the government proves by a preponderance of the evidence that the form of cocaine involved in the offense was "actually crack" as defined in the guidelines, which requires proof that the cocaine contains sodium bicarbonate, a sentencing court may not apply the enhanced "cocaine base" guidelines. United States v. James, 78 F.3d 851, 858 (3d Cir. 1996).
In the Cocaine Report, the Sentencing Commission explained the differences between the various forms of cocaine:
Coca paste is a chunky, off-white to light-brown, putty-
like substance that exists primarily as an intermediate
product in the processing of coca leaves into powder
cocaine. Coca paste is derived from coca leaves by
mixing the leaves with an alkaline material (e.g.,
sodium bicarbonate), an organic solvent (e.g., kerosene),
and water. The mixture is agitated and the cocaine alkaloid and the organic solvent naturally separate from the water and
the leaves. The water and the leaves are removed from the
mixture and discarded. Using an acid, the cocaine alkaloid
and the kerosene are separated and the kerosene is drawn off
the mixture. Additional sodium bicarbonate is added and a
solid substance separates from the solution. This solid
substance, the coca paste, is removed and is allowed to
dry.
Chemically, coca paste is a base form of cocaine (similar
to freebase cocaine and crack cocaine) and typically
conains residual toxins from the conversion process.
Because coca paste is a base, it is hydrophobic --
not readily absorbed into water -- and thus, cannot be
injected, insufflated (snorted), or ingested. . . .
Powder cocaine is a white, powdery substance produced
by reacting coca paste with hydrochloric acid. It is
the most commonly used form of cocaine. . . . [C]ocaine
powder is derived by dissolving the coca paste in
hydrochloric acid and water. To this mixture a
potassium salt (potassium permanganate) is added. The
potassium salt causes undesired substances to separate
from the mixture. These substances are then discarded.
Ammonia is added to the remaining solution, and a
solid substance -- the powder cocaine -- separates from
the solution. The powder cocaine is removed and
allowed to dry. Prior to distribution, powder cocaine
is typically "cut" or diluted, by adding a variety of
one or more adulterants: sugar, local anesthetics (e.g., benzocaine), other drugs, or other inert substances.
Consequently, the purity level of powder cocaine
may vary considerably.
While the active ingredient in powder cocaine --
the cocaine alkaloid -- does not differ from the
active ingredient in coca paste or othe forms of
cocaine, the salt substrate causes the drug to
be hydrophilic -- readily dissolved, or absorbed,
into water -- and, thus, easily injected, insuff-
lated, or ingested. . . .
Cocaine base is produced from powder cocaine.
In this form, the cocaine alkaloid has been
"freed" from the salt substrate and is once
again in a base form similar to that of coca
paste. . . . Powder cocaine can be converted
into two forms of cocaine base, freebase
cocaine or crack cocaine. . . .
Crack cocaine, another form of cocaine base,
also is derived from powder cocaine. Unlike the
processing of freebase cocine, converting powder
cocaine into crack cocaine does not involve any
flammable solvents. The powder cocaine is simply
dissolved in a solution of sodium bicarbonate and
water. The solution is boiled and a solid substance
separates from the boiling mixture. This solid
substance, crack cocaine, is removed and allowed
to dry. The crack cocaine is broken or cut into
"rocks," each typically weighing from one-tenth
to one-half a gram. One gram of pure powder
cocaine will convert to approximately 0.89
grams of crack cocaine. The Drug Enforcement
Administration estimates that crack rocks are
between 75 and 90 percent pure cocaine.
Cocaine Report at 12-13 (emphasis added).
The evidence in this case failed to demonstrate that the form of cocaine seized from Mr. xxxxxxx was crack cocaine, as defined by the Sentencing Commission in its guideline. The only evidence as to the chemical makeup of the substance came from the Drug Enforcement Administration (DEA) chemist, whose report reflected an analysis of cocaine base (see Presentence Report, page 3, paragraph 5). There was no evidence, or any proffer of evidence, that the cocaine base was actually crack cocaine. As the Third Circuit held in James, to impose the harsher penalties for cocaine base the government must prove that the cocaine contains sodium bicarbonate. James, 78 F.3d at 858; see also United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994) (cocaine base penalties do not apply to substance that was liquid in form but tested positive for cocaine base because it did not meet the guideline definition of crack).
This court is bound by the guideline definition of "crack." Stinson v. United States, 113 S.Ct. 1913, 1915 (1993) ("commentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.") Since the government has not met its burden of providing a factual basis for Mr. xxxxxxx's guilty plea to possession with intent to distribute cocaine base, Mr. xxxxxxx's convicton and sentence on Count I should be vacated.
The fact that there was a guilty plea in this case does not defeat the argument that the possession with intent to distribute crack cocaine conviction cannot stand, because "in order to enter a valid guilty plea, a defendant . . . must possess an understanding of 'the law in relation to the facts' . . . [which] means, among other things, that a defendant must understand not only the nature of the charge against him or her, but also that his or her conduct actually falls within the charge." United States v. Frye, 738 F.2d 196, 199 (7th Cir. 1984), citing McCarthy v. United States, 394 U.S. 459, 466-467 (1969). See also United States v. Briggs, 920 F.2d 287, 293 (5th Cir. 1991) ("factual basis [for guilty plea] cannot simply be implied from the fact that the defendant has pled guilty"); Nevarez-Diaz v. United States, 870 F.2d 417, 421 (7th Cir. 1989); United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984). Here, there can be no confidence that Mr. xxxxxxx both understood the nature of the drug charge and that his conduct constituted a violation of that statutory section.
III. EVEN IF THE GOVERNMENT HAD ESTABLISHED THAT
THE SUBSTANCE IN MR. xxxxxxx'S POSSESSION WAS
CRACK, THE APPLICABLE SCHEDULING PROCEDURES
WERE NOT FOLLOWED AND THEREFORE, IT IS NOT
A CRIME TO POSSESS COCAINE BASE OR CRACK.
In 1970 Congress passed the Drug Abuse Prevention and Control Act(2) (hereinafter "Control Act") as a response to what it perceived as the rising illicit drug use in the country. The Control Act sought to make drug enforcement more efficient by (1) granting authority for drug abuse prevention and rehabilitation; (2) providing a more effective means for law enforcement to prevent and control drug abuse; and (3) providing a scheme of criminal penalties for drug offenses. Prior to the Control Act, Congress' approach was to pass more narrowly-tailored pieces of legislation, focusing on particular types of drug offenses. This was not only duplicative but also confusing.(3)
Title II of the Control Act, "Control and Enforcement," granted control to the Justice Department of drug transactions and established a procedure by which the Attorney General could classify new drugs which have potential for abuse. Controlling transactions called for registration of manufacturers, wholesalers, retailers, and all others in the legitimate distribution chain. All other transactions outside this legitimate distribution chain were made illegal.
Classifying new drugs was left to the exclusive control of the Attorney General(4) upon a finding that the drug does indeed pose a threat. Under this established procedure, when the Attorney General feels that a new drug poses a threat for abuse, she can gather data and request a scientific evaluation of the new drug from the Secretary of Health, Education and Welfare (hereinafter "HEW").(5) If the Secretary of HEW determines that the new drug does not pose a threat for abuse, the Attorney General cannot proceed to make use of the drug illegal. If, on the other hand, the Secretary of HEW determines that the drug is dangerous, the Attorney General has the discretion to classify the drug as a controlled substance, making its use outside of legitimate channels illegal. Aside from the scientific evidence, the Attorney General must also take into consideration other factors.(6)
The Control Act created five categories for classification of controlled substances. Once the Attorney General has determined that the drug in question should be classified, it will be placed in one of the five schedules in order to be controlled. The criteria for placement into either one of the five categories consists of three factors: (1) the potential for abuse; (2) whether the drug has an accepted medical use; and (3) the level of physical or psychological dependence associated with its use. Schedule I drugs typically have a high potential for abuse, no accepted medical use, and a dangerous level of physical or psychological dependence, while drugs that are less dangerous are classified accordingly into lower schedules. These schedules were codified at 21 U.S.C.A. § 812.
In 1986 and 1988, under Anti-Drug Abuse Acts, Congress amended 21 U.S.C.A. §§ 841(7) and 960 to include cocaine base. However, neither Congress nor the Attorney General amended 21 U.S.C.A. § 812 to classify cocaine base as a controlled substance. The Anti-Drug Abuse Acts only amended mandatory minimum statutes but did not schedule cocaine base. As a result, there is little information on Congress' findings regarding cocaine base or on determinations by the Attorney General or the Drug Enforcement Administration (hereinafter, DEA). Neither the House nor the Senate submitted reports on the 1986 and 1988 Anti-Drug Abuse Acts.(8) Furthermore, a Westlaw search through the Federal Register on the term "new drug" resulted in notices by the DEA on 3,4-methylenedioxymethamphetamine (hereinafter "MDMA"), and on substances that aid in the conversion of cocaine base into cocaine hydrochloride, but none on cocaine base.
Cocaine base, in the form known as crack, is created through a conversion process that removes adulterants from cocaine hydrochloride. The chemical formula for cocaine hydrochloride is C17H22NO4CL, while that for cocaine base is C17H21NO4.(9) The only difference between the two is the hydrochloride (HCl), composed of one molecule of hydrogen (H) and one molecule of chloride (Cl), which when removed from cocaine hydrochloride creates cocaine base. This conversion process can be accomplished simply, necessitating only cocaine hydrochloride, water, baking soda, and a microwave. The three ingredients are mixed together, then heated in the microwave to evaporate the water.(10) The chemical reaction between the three ingredients, combined with the heat, creates a rock-like substance that can be cut up and smoked in a glass pipe (a.k.a., a "crack pipe").
A. What Makes A Drug "New"?
In order to know whether a drug is substantially different from one already classified, it is helpful to examine other drugs recently controlled. In 1984, the DEA began investigating a new drug, MDMA, known on the streets as "Ecstasy". The DEA, having been delegated the Attorney General's control under the Control Act, conducted sociological and scientific investigations of MDMA and scheduled the drug, pursuant to 21 U.S.C.A. §§ 811 and 812, with its publication in the Federal Register making it final.(11)
MDMA was permanently classified into Schedule I after the DEA's review of the abuse and illicit trafficking of MDMA (effective November 13, 1986).(12) The Administrator of the DEA found that MDMA was: (1) an analog(13) of a Schedule I controlled substance, 3,4-methlendioxyamphetamine (hereinafter "MDA"); (2) has no legitimate medical use or manufacturer in the United States; (3) is part of illicit drug trafficking; (4) produces stimulant and psychotomimetic effects in humans similar to those produced by MDA; and (5) has been associated with medical emergencies.(14) The difference between MDMA and MDA is that MDMA has methamphetamine, while MDA has only amphetamine.
As required by 21 U.S.C. 811(b), the DEA requested scientific and medical information and an evaluation from the Secretary of the Department of Health and Human Services (hereinafter "DHHS"). The Assistant Secretary for Health, acting on behalf of the Secretary of DHHS, determined that MDMA has a high potential for abuse and presents a significant risk to the public health, and recommended that MDMA should be placed into Schedule I of the Control Act. Upon these findings, the DEA classified MDMA as a controlled substance, although MDA, an analog substance, was already controlled.
The chemical make-up of a new drug need not be substantially different from a drug already classified as a controlled substance. MDMA's chemical formula is C11H15NO2, while MDA's is C10H13NO2. In order to convert MDA, the precursor or analog, into MDMA, one would have to chemically react MDA with another substance in order to add one Carbon molecule (C) and two Hydrogen molecules (H2) to MDA, making MDMA.
B. Is Crack Cocaine A New Drug?
Crack's popularity, potential for abuse,(15) and lack of current medical use should have made the drug "new" and therefore, schedulable. Although cocaine base had been around since cocaine hydrochloride, the form of cocaine base called crack was not used until the 1980s. Crack was not only considered to be a different form of cocaine, but also much more potent. Its addictive properties and its affordability significantly distinguished crack from cocaine hydrochloride.
"Crack" cocaine is considered to be a cocaine base, and all cocaine hydrochloride was at one point a cocaine base. Cocaine base is subjected to ether, then to hydrochloric acid, along with a bridging solvent such as acetone, and white crystals (cocaine hydrochloride) precipitate out. A reverse process is used to take cocaine hydrochloride back one stage and form crack cocaine. This process requires extracting only the cocaine from the cocaine hydrochloride, forming crack, a refined form of cocaine.
Aside from the chemical differences between crack cocaine and cocaine hydrochloride, there are pharmacological and sociological differences between the two drugs. Crack cocaine is thought to be more potent and addictive. Its rock-like form allows it to be inhaled rather than snorted and it is considerably less expensive than cocaine hydrochloride. Furthermore, the popularity of crack has been more obvious in low-income African American and Hispanic communities.
Other indicators that crack is a different drug than cocaine hydrochloride are the external markers of crack cocaine abuse. Persons addicted to crack cocaine can develop "Crack Keratitis", "Crack Thumb", and "Crack Hands": markers not found in individuals using only cocaine hydrochloride.(16) Because crack cocaine is smoked and therefore volatile, it anesthetizes the cornea. If abusers rub their eyes, they can cause serious damage to the corneas, forming Crack Keratitis. Less severe indicators are Crack Thumb and Crack Hands. Crack Thumb is the forming of a callous on the thumb as a result of holding a cigarette lighter over a crack pipe for extended periods of time. Crack Hands results from holding a hot crack-pipe. Although the absence of external markers are not proof that an individual does not abuse crack, the presence of these markers can be corroborative of abuse.
In spite of the foregoing, there is no evidence that the DEA attempted to schedule crack. Cocaine base was added to 21 U.S.C. §§ 841 and 960 by Congress under the Anti-Drug Abuse Act of 1986 and the penalties for cocaine base were increased, relative to cocaine hydrochloride.(17) It was not clear at that time what Congress meant by cocaine base, so there was confusion as to whether all forms of cocaine base were included.(18)
It was not until November 1, 1993 that the United States Sentencing Commission (USSC) tried clearing up the confusion as to what Congress meant by "cocaine base". The USSC amended § 2D1.1 of the Guidelines Manual to define cocaine base, for sentencing purposes, to mean "crack".(19) Crack is "usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form." Although Congress did not define cocaine base to be crack, amendments to the Guidelines Manual were submitted to Congress prior to their enactment. Congress' inaction was interpreted to mean approval of the amendments.(20)
After § 2D1.1 was amended, there was much litigation over whether the higher penalty for crack cocaine over cocaine hydrochloride was constitutional. The courts almost uniformly held that crack cocaine is a different drug than cocaine hydrochloride, and therefore could be penalized more severely. For example, in United States v. Easter,(21) the Tenth Circuit Court of Appeals compared the chemical formulas of both drugs in order to prove that they are different from each other, therefore upholding the disparate penalties. The court concluded that "[a]s a result of their different chemical compositions, cocaine base and cocaine hydrochloride have distinct physical properties, including different melting points, solubility levels, and molecular weights." Therefore, ". . .'cocaine base' is sufficiently defined and distinguishable from other forms of cocaine. . ."(22) In a similar case, the Fourth Circuit Court of Appeals upheld the use of "cocaine base" in 21 U.S.C.A § 841(b)(1)(A)(iii) by interpreting Congress' intent in penalizing more severely violations involving crack cocaine. The court said that Congress' purpose was to "recognize crack as a distinct and separate drug from cocaine hydrochloride."(23)
Later, when the Sentencing Commission tried to change the 100:1 ratio into a 1:1 ratio, the Administration was successful in urging Congress to oppose this amendment.(24) Both the House and the Senate passed legislation, which President Clinton signed into law,(25) blocking this amendment to the Sentencing Guidelines. There can be no question, therefore, that Congress treated cocaine powder and crack cocaine as two different drugs. Furthermore, any suggestion on the part of Congress that crack and cocaine hydrochloride are similar would raise substantial equal protection issues.(26)
Another indication that crack cocaine is a new drug comes from United States v. Touby, 500 U.S. 160, 111 S.Ct. 1752 (1991). There, the Supreme Court discussed the intent of Congress in establishing emergency scheduling procedures for new drugs.(27) The Court stated that a drug that was "similar in pharmacological effect to scheduled substances but differed slightly in chemical composition, so that existing schedules did not apply to them, was a new drug.(28)
There are also other commonly-cited differences between powder cocaine and crack that support the argument that crack cocaine should have been scheduled: (1) the potential for abuse of crack cocaine is significantly higher than cocaine hydrochloride; (2) there is no current medical use for crack cocaine, although
there is a medical use for cocaine hydrochloride; and (3) the level of physical and psychological dependence on drack cocaine is higher than that for cocaine hydrochloride.
Because crack cocaine is a new drug and should have been scheduled, the government has failed to create an offense. In United States v. Caudle, 828 F.2d 111 (5th Cir. 1987), the court dismissed the indictments of two defendants because the DEA had failed to follow the procedure necessary to place MDMA temporarily on the list of controlled substances pursuant to 21 U.S.C. § 811(h). The court held that "the defendants clearly could not be indicted for distributing a drug that was not placed on the list for controlled substances." Therefore, Mr. xxxxxxx's plea to possession with intent to distribute cocaine base cannot stand and his sentence on that offense must be vacated.
IV. MR. xxxxxxx'S PLEA TO POSSESSION OF A FIREARM
MUST BE VACATED BECAUSE THERE WAS NO FACTUAL
BASIS FOR THE PLEA.
Mr. xxxxxxx's motion to vacate the 60-month consecutive sentence imposed on the count charging him under 18 U.S.C. § 924(c) is based upon Bailey v. United States, 116 S. Ct. 501 (1995). In that case, the Supreme Court held that for a conviction under 924(c), the government must prove that the defendant actively employed the firearm during and in relation to the drug offense, specifically finding that Congress intended to require more than possession to trigger the statute's application. 116 S. Ct. at 506, 509.
In the instant case, the government's evidence in support of the plea of guilty was that Mr. xxxxxxx was arrested for possession with intent to distribute cocaine base, and that at that time, he had a gun in his waistband. The government did not offer any evidence to demonstrate a connection between the possession of the firearm and the drug trafficking offense.
In light of Bailey, the possession of the firearm must be integrally connected to the drug offense, so as to facilitate it and to make it unlikely that the drug offense could be successfully accomplished without the firearm. No such showing was made by the government in this case. Therefore, the conviction under 18 U.S.C. Sec. 924(c) must be vacated.
CONCLUSION
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings, Mr. xxxxxxx requests that an evidentiary hearing be conducted at which proof may be offered concerning the issues raised in his motion and memorandum. After an evidentiary hearing is held, the Court should vacate Mr. xxxxxxx's convictions and sentence, and permit him to withdraw his guilty plea, and to file a motion to suppress tangible evidence, or grant such other and further relief as it deems appropriate.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_________________________
Reita Pendry
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. Pursuant to the pertinent instructions accompanying the Model Form for Motions Under 28 U.S.C. § 2255, prescribed by the Rules Governing Section 2255 Cases in the United States District Courts, we have set forth in our memorandum the pertinent facts and applicable law in support of our motion. However, in discussing the facts relating to our legal claims, we do not mean to suggest that an evidentiary hearing on these claims is unnecessary. To the contrary, because our allegations involve factual, as well as legal issues, a full hearing on this motion is required.
2. Act of October 27, 1970, Pub. L. 91-513, 1970 U.S.C.C.A.N., 4566.
3. Between 1914 to 1970, Congress enacted more than 50 pieces of legislation relating to control and diversion, from legitimate channels, of those drugs referred to as narcotics and dangerous drugs. Id.
4. 21 U.S.C.A. § 801-904 names the Attorney General, but in 1973 the Attorney General subdelegated her powers under the Control Act to the Drug Enforcement Administration. United States v. Caudle, 828 F.2d 1111, n. 1 (5th Cir. 1987).
5. 21 U.S.C.A. § 811(b): The Attorney General shall, before initiating proceedings under subsection (a) of this section to control a drug or other substance . . . , and after gathering the necessary data, request from the Secretary a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be controlled.
6. 21 U.S.C.A. § 811(c) lists the factors to be taken into consideration prior to determining scheduling: (1) The drug's actual or relative potential for abuse; (2) scientific evidence of its pharmacological effect, if known; (3) the state of current scientific knowledge regarding the drug or other substance; (4) its history and current pattern of abuse; (5) the scope, duration, and significance of abuse; (6) what, if any, risk there is to the
public health; (7) its psychic or physiological dependence liability; and (8) whether the substance is an immediate precursor of a substance already controlled under this chapter.
7. Section 841(b)(1)(A)(iii) provides for a 10-year minimum sentence for those persons found in possession of 50 grams or more of cocaine base. Those persons with 100 times that amount in cocaine hydrochloride are subjected to a similar 10-year minimum sentence.
8. See Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 1986 U.S.C.C.A.N., 5393; and Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 1988 U.S.C.C.A.N., 5937.
9. United States v. Easter, 981 F.2d 1549, 1558 (9th Cir. 1992).
10. Gillmer, supra note 3, at 509.
11. 51 F.R. 36552 (October 14, 1986).
12. On July 1, 1985, the Administrator of the DEA placed MDMA in Schedule I of the Control Act pursuant to the emergency scheduling provisions of 21 U.S.C. 811(h)(1). The Tenth Circuit in United States v. Spain, 825 F.2d 1426 (10th Cir. 1987), found that the temporary scheduling of MDMA was invalid on two grounds. The first was an unlawful delegation of authority from the Attorney General to the DEA, and the second was the DEA's neglect in not issuing an order at the prescribed time, pursuant to § 811(h).
The Supreme Court overturned only that part of Spain that held the Attorney General's subdelegation of authority to the DEA as unlawful. It did not overturn the Spain court's invalidation of temporary scheduling of MDMA due to procedural defect (i.e. order not issued as prescribed time). Touby v. United States, 500 U.S. 160, 111 S.Ct. 1752 (1991).
The reason for the postponement of permanent scheduling, necessitating temporary scheduling, was due to the extensive findings required for scheduling and a legal issue over what schedule was most appropriate for MDMA. Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987).
13. Webster's definition of "analog" within the context of chemistry is the following: "A structural derivative of a parent compound."
14. 51 F.R. 36552 (October 14, 1986).
15. In fact, "[a] key criterion for controlling a substance, and the one which will be used most often, is the substance's potential for abuse." Comprehensive Drug Abuse Prevention And Control Act of 1970, H.R. Rep No. 1444, 91st Cong., (1970), reprinted in 1970 U.S.C.C.A.N. 4566, 4601. (Emphasis added).
16. Karch, supra note 17, at 65-67.
17. It was Congress that delegated its scheduling powers to the Attorney General (and later the DEA), but Congress should have followed the same procedures it instructed the Attorney
General to follow when acting on its own volition. 21 U.S.C.A. § 811.
18. See United States v. Shaw, 936 F.2d 412 (9th Cir. 1991) (holding that cocaine base means only "crack"); See also, United States v. Jackson, 968 F.2d 158 (2nd Dir.), cert. denied, 113 S.Ct. 664 (1992) (cocaine base has a scientific, chemical definition that is more inclusive than crack).
19. With such a ratio (100:1), there's no doubt that the United States Sentencing Commission believes that crack cocaine is significantly different from cocaine hydrochloride.
20. Munoz-Realpe, 21 F.3d 377 (11th Cir. 1994) (Holding that by allowing an amendment to the Sentencing Guidelines Manual to take effect, Congress has endorsed it).
21. 981 F.2d 1549, 1558 (10th Cir. 1992).
22. Id.; See also United States v. Jackson, 968 F.2d 158, 161 (2nd Cir. 1992); and United States v. Turner, 928 F.2d 956 (10th Cir. 1991).
23. United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995); See also 132 Cong. Rec. S14,288 (daily ed. September 30, 1986) (one purpose of Narcotics Penalties and Enforcement Act of 1986 was to recognize crack as a distinct and separate drug from cocaine hydrochloride).
24. The recommendations proposed by the United States Sentencing Commission were scheduled to become law unless Congress passed blocking legislation before November 1, 1995. Gillmer, supra note 3, at 502 (1995).
25. President Clinton signed the blocking legislation on October 30, 1995; just one day before the Sentencing Commission's proposed amendment for a 1:1 ratio would have taken effect.
26. In United States v. Clary, an equal protection challenge against the 100:1 ratio was dismissed on grounds that "the potency of [crack], the ease with which drug dealers can carry and conceal it, the highly addictive nature of the drug, and the violence which often accompanies it" makes crack distinct from cocaine hydrochloride. 34 F.3d 709 (8th Cir. 1994) (quoting United States v. Lattimore, 974 F.2d 971, 974-75, cert denied, U.S. (1991)); See also United States v. Cyrus, 890 F.2d 1245 (D.C. Cir. 1989) (holding that Congress had a rational purpose for amending 21 U.S.C § 841, because "[c]rack is far more addictive than cocaine. It is far more accessible due to its relatively low cost. And it has experienced an explosion of popularity.").
27. To combat the designer drug problem discussed by the Court in Touby, Congress amended the Control Act in 1984 to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis. This was necessary because the formal scheduling procedure can take from 6 to 12 months. The amendment was codified at 21 U.S.C. § 811(h).
28. Touby, 500 U.S. at 163, 111 S.Ct. at 1755.