UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
v. : Cr. No. 94-038 (SS)
:
xxxxxxxxxxxxxxxxxx, :
:
Defendant. :
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
AND INCORPORATED MEMORANDUM OF FACTS AND LAW
Defendant xxxxxxx, 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. xxxxxxxx states as follows:
1. This Motion is based upon all the files, records and proceedings in this case.
2. On January 11, 1994, Mr. xxxxxxxx was arrested following a traffic stop during which police recovered a quantity of cocaine base and a weapon. A complaint charging him with possession with intent to distribute cocaine base was filed on January 14, 1994. On February 2, 1994, a two-count Information was filed with this court, Count One of which charged conspiracy to distribute and possess with intent to distribute more than fifty grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii), and 846; and Count Two of which charged possession of a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c).
3. On that same date, February 2, 1994, Mr. xxxxxxxx pled guilty, pursuant to a written plea agreement, to Counts One and Two of the Information.
4. On October 12, 1995, Mr. xxxxxxxx was sentenced to a term of imprisonment of ten years on Count One and a consecutive term of five years on Count Two.
5. There have been no petitions, applications, motions or proceedings filed or maintained by Mr. xxxxxxxx in any other federal court with respect to the judgment entered in this case.
6. For the reasons set forth below, Mr. xxxxxxxx prays that this Court set aside his convictions and sentence in this case.(1)
MEMORANDUM OF FACTS AND LAW
I. SUMMARY OF ARGUMENT
Mr. xxxxxxxx challenges as illegal the sentences imposed upon him in the instant case, on the ground that there was no factual basis to support his pleas of guilty to Counts One and Two of the Information. The government made no proffer or showing, at the time of the plea or at the sentencing hearing 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), and United States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994) in order to trigger the enhanced penalties applicable to crack cocaine. Moreover, because the government did not comply with the scheduling requirements of 21 U.S.C. Sec. 811, 812 in classifying cocaine base as a controlled substance, Mr. xxxxxxxx could not be prosecuted for the offense in Count One of the Information involving cocaine base. With regard to Count Two of the Information, the government made no showing that Mr. xxxxxxxx used or carried the firearm which he allegedly 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 prior to Mr. xxxxxxxx's arrest on January 11, 1994, he ran from police and that as he did so, a gun fell from his person to the ground and was later recovered. Mere possession of the gun, without some indication that Mr. xxxxxxxx intended to use the gun to further a 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. xxxxxxxx WAS "CRACK" COCAINE.
In establishing the statutory penalties for cocaine offenses, Congress adopted a 100:1 ratio as between amounts of cocaine and cocaine base. In 1993, the Sentencing Commission amended the notes following the Drug Quantity Table of the United States Sentencing Guidelines (U.S.S.G.) 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 recently interpreted that provision to mean that unless the government proves by a preponderance of the evidence that the form of cocaine base involved in an offense was "actually crack" as defined in the guidelines, which requires proof that the cocaine contains sodium bicarbonate, a sentencing court may not impose the enhanced "cocaine base" penalties. United States v. James, 78 F.3d 851, 858 (3d Cir. 1996).(2) Moreover, in United States v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994), the court held that the definition of "cocaine base" in 21 U.S.C. Sec. 952(a), which imposes a mandatory minimum sentence for importation, is limited to crack cocaine as defined in the guidelines. The court reasoned that when Congress allowed the U.S.S.G. amendment limiting cocaine base to "crack" to take effect, it gave its approval to the amendment's definition of cocaine base:
When the Sentencing Commission proposes an amendment
to the Guidelines themselves (as opposed to commentary
or other explanatory matter), the amendment is first
submitted to Congress, which may act to disapprove
or change the proposed amendment within a specified
time (at least 180 days). 28 U.S.C. Sec. 994(p).
If Congress takes no action, the amendment becomes
effective. Id. 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. Because Congress has provided
this new definition, we think it is proper for us
to look to the Guidelines in determining the meaning
of "cocaine base" in the mandatory minimum statute,
especially since both provisions seek to address the
same problem.
21 F.3d at 377-78 (citation omitted).
In its February 28, 1995 "Special Report to Congress: Cocaine and Federal Sentencing Policy" (hereafter, 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
contains 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 other 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 cocaine, 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. xxxxxxxx was crack cocaine, as defined by the Sentencing Commission in its guideline, see, United States v. James, 78 F.3d at 858, and as impliedly defined by Congress in the mandatory minimum statutes, see, United States v. Munoz-Realpe, 21 F.3d at 377.(3) In the instant case, the government's proffer in support of the plea consistently referred to the substance as cocaine base.(4) Apart from the proffer, 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 5, paragraph 6). In James, the court found that the government had failed to meet its burden when the only evidence that the substance was crack cocaine came from the prosecutor's reference to the substance as "crack" at the plea hearing. Id. at 856. Here, there was even less evidence of the nature of the substance, since the government's proffer tracked the Information, using throughout the term "cocaine base." 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. xxxxxxxx's guilty plea to conspiracy to distribute and possess with intent to distribute cocaine base, his conviction and sentence on Count One should be vacated.
The fact that there was a guilty plea in this case does not defeat the argument that the cocaine conviction must be vacated, 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, 89 S.Ct. 1166, 1171 (1969).(5) 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, given the total absence of proof that Mr. xxxxxxxx possessed crack cocaine, there can be no confidence that Mr. xxxxxxxx both understood the nature of the drug charge to which he pled guilty and further understood whether his conduct constituted a violation of that statutory section.
III. EVEN IF THE GOVERNMENT HAD ESTABLISHED THAT
THE SUBSTANCE IN MR. xxxxxxxx'S POSSESSION WAS
CRACK, THE APPLICABLE SCHEDULING PROCEDURES
WERE NOT FOLLOWED AND THEREFORE, IT IS NOT
A CRIME TO POSSESS COCAINE BASE IN ANY FORM,
INCLUDING CRACK.
In 1970 Congress passed the Drug Abuse Prevention and Control Act(6) (hereafter, "the Act"). The Act created five categories, or Schedules, of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. 21 U.S.C. Sec. 812. Under the Act, the severity of statutory sanctions for drug distribution and related offenses depends on the schedule in which the drug is classified, with the most severe penalties typically attaching to Schedule I substances and the least severe penalties attaching to Schedule IV and V substances. 21 U.S.C. Sec. 811(b). Congress made the initial classifications of controlled substances. However, recognizing that scientific information concerning controlled substances could change, Congress, in 21 U.S.C. Sec. 811, delegated authority to the Attorney General to add or remove drugs from the schedules. United States v. Fogarty, 692 F.2d 542, 547 n.3 (8th Cir. 1982).
This delegation of authority to the Attorney General has been repeatedly upheld as constitutional. See, e.g., United States v. Barron, 594 F.2d 1345, 1352 (10th Cir. 1979); United States v. Roya, 574 F.2d 386, 392 (7th Cir. 1978); United States v. Pastor, 557 F.2d 930, 941 (2d Cir. 1977) ("The vesting of authority in the Attorney General is a recognition of the need for agency rather than Congressional response in an area where legislative action could not keep pace with the speed of technological developments, `for with new drugs being discovered and introduced at an unprecedented rate, it would be impossible for Congress to determine beforehand those drugs to which it wishes a particular policy to be applied and to formulate specific rules for each situation.' Iske v. United States, 397 F.2d 28, 331 (10th Cir. 1968).")
When it was determined that the administrative procedures by which the Attorney General could add a drug to a schedule were often time-consuming, Congress amended the Act in 1984 to create an expedited procedure by which the Attorney General could schedule a substance on a temporary basis so as to respond to concerns of law enforcement officials who identified new and dangerous drugs. This temporary scheduling procedure was also determined to be constitutional. Touby v. United States, 111 S.Ct. 1752, 1754 (1991).
Cocaine base was not listed in the original schedules established by Congress. Nor was it added to any of the five schedules by the process put in place by Congress pursuant to 21 U.S.C. secs. 811 and 812. Indeed, Congress bypassed the elaborate process it had put in place for the addition to or deletion of drugs from the original five schedules when cocaine base was added to 21 U.S.C. §§ 841 and 960 under the Anti-Drug Abuse Act of 1986 (hereafter, "the 1986 Act") which created the 100:1 ratio in penalties for cocaine and cocaine base.
The 1986 Act "followed an extraordinarily hasty and truncated legislative process." United States v. Clary, 846 F. Supp. 768, 784 (E.D.Mo. 1994). Citing testimony of the counsel to the House Subcommittee on Crime concerning passage of the Act, the court in Clary noted that the sentencing provisions of the Act were initiated "in a climate in the Congress that some have characterized as frenzied." Id. Further, the development of the 1986 legislation in the House was out of the ordinary, in that much of the legislative process of subcommittee hearings, mark-up and amendment was dispensed with. Id. In the Senate, a hearing of about three hours was conducted. Id. 784-85. This circuit has noted the "undeniable haste in passing the 1986 Act." United States v. Johnson, 40 F.3d 436, 440 (D.C. Cir. 1994). Cocaine base was never the subject of the intensive and careful study envisioned by Congress when it passed the 1970 Act and vested its authority to create controlled substances in the Attorney General. Following the passage of the 1986 Act, The courts were deluged with cases challenging the 100:1 ratio between the penalties for cocaine and cocaine base. In those cases, courts have repeatedly held that cocaine base is a different drug than cocaine hydrochloride, and therefore can be penalized more severely. See, e. g., United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995) (Congress' purpose was to "recognize crack as a distinct and separate drug from cocaine hydrochloride."); United States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992) (the court compared the chemical formulas of both drugs in order to prove that they are different from each other, therefore upholding the disparate penalties, and 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.").(7)
Because cocaine base is a different drug from cocaine, it should have been scheduled in accordance with the procedures put in place by Congress when it vested in the Attorney General its authority to add new drugs to existing schedules. The failure to schedule cocaine base as a new drug means that the government has failed to create an offense in the instant case. United States v. Caudle, 828 F.2d 111 (5th Cir. 1987). In Caudle, the court dismissed the indictments of two defendants because the Drug Enforcement Administration (DEA) had failed to follow the procedure necessary to place a new drug 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. xxxxxxxx's plea to conspiracy to distribute and possess with intent to distribute cocaine base cannot stand and his sentence on that offense must be vacated. See, Section II, supra.
IV. MR. xxxxxxxx'S PLEA TO POSSESSION OF A FIREARM
MUST BE VACATED BECAUSE THERE WAS NO FACTUAL
BASIS FOR THE PLEA.
Mr. xxxxxxxx'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. xxxxxxxx was arrested for possession with intent to distribute cocaine base, and that at that time of his arrest, a gun fell from his person. 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. 116 S.Ct. at 506.(8) No such showing was made by the government in this case.
Moreover, Mr. xxxxxxxx entered a plea of guilty to Count Two of the Information, which reads "On or about January 11, 1994, within the District of Columbia, MARK A. xxxxxxxx, did unlawfully and knowingly use and carry a firearm, that is a 9 MM Ruger, during and in relation to the offense of unlawful possession with intent to distribute cocaine base, a drug trafficking crime." (Emphasis added). Although the statute, 18 U.S.C. Sec. 924(c), reads in the disjunctive, the Information was written in the conjunctive. Ordinarily, the government must indict in the conjunctive, even though a statute is written in the disjunctive, in order to give adequate notice of the charges against a defendant. See, Joyce v. United States, 454 F.2d 971, 976-77 (D.C. Cir. 1971); United States v. Street, 66 F.3d 969, 974 (8th Cir. 1995). A problem arises, in the plea context, however, when, as here, one of the ways Mr. xxxxxxxx was charged in the Information with violating the statute could no longer be supported under Bailey v. United States, 116 S.Ct. 501 (1995). Since that case, it is clear that the proffer in no way supported a plea to using the firearm. It is entirely unclear from the plea proceedings, however, whether Mr. xxxxxxxx's plea was to using, rather than carrying, the weapon. Given the language of the Information, it is impossible to determine whether Mr. xxxxxxxx acknowledged guilt under the "use" prong of 924(c), rather than the "carry" prong. If in fact he pled guilty under the mistaken belief that his conduct constituted "use" of the weapon, there was no factual basis to support the plea, and his plea was not knowing and voluntary, see, Section II, supra. 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. xxxxxxxx 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. xxxxxxxx's convictions and
sentences, and permit him to withdraw his guilty pleas, 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. See also, United States v. Bennett, 100 F.3d 1105, 1111 (3d Cir. 1996).
3. The court in James declined to reach the issue whether the statutory definition of cocaine base in the mandatory minimum statutes was the same as in the Guideline, as the Eleventh Circuit had held in Munoz-Realpe, because James' plea agreement had specifically provided that he was guilty "in violation of 21 U.S.C. Sec. 841(b)(1)(B)(iii)." 78 F.3d at 858. However, in the instant case, Mr. xxxxxxxx's plea agreement provided that he was guilty of 21 U.S.C. Sec. 846, the conspiracy statute, rather than any specific provision of Sec. 841. On these facts, it is fair to assume, the Third Circuit would follow the reasoning of the court in Munoz-Realpe and hold that the statutory definition of "cocaine base" is identical to the definition in the Guideline.
4. See written proffer filed at the time of the plea in this case on February 2, 1994. A copy of the transcript of the plea and sentencing have been ordered, but have not yet been received. These transcripts will be submitted as Exhibits to this Motion upon receipt.
5. "The judge must determine `that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty. . . .' Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to `protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'" McCarthy v. United States, 89 S.Ct. at 1171 (citations omitted).
6. Act of October 27, 1970, Pub. L. 91-513, 1970 U.S.C.C.A.N., 4566.
7. 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).
8. Even before Bailey, it was clear that the purpose of the "during and in relation to" language was to impose more severe penalties when a weapon actually facilitated the commission of a drug trafficking crime. "Using a Firearm During and In Relation to a Drug Trafficking Crime: Defining the Elements of the Mandatory Sentencing provision of 18 U.S.C. Sec. 924(c)(1)," 30 Duq. L. Rev. 39, 40, Fall, 1991.