United States v. Davis-Cobbins, Keyaw , 177 F. App'x 488 ( 2006 )


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  •                            UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued March 1, 2006
    Decided April 17, 2006
    Before
    Hon. FRANK H. EASTERBROOK, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    Hon. DIANE S. SYKES, Circuit Judge
    No. 05-1872
    Appeal from the United States
    UNITED STATES OF AMERICA,                      District Court for the Western
    Plaintiff-Appellee,                        District of Wisconsin
    v.                                       No. 04 CR 147
    KEYAWN D. DAVIS-COBBINS,                       John C. Shabaz,
    Defendant-Appellant.                       Judge.
    ORDER
    Keyawn Davis-Cobbins pleaded guilty to distributing “cocaine base” in
    violation of 
    21 U.S.C. § 841
    (a)(1). The district court indicated at sentencing that
    cocaine base and crack were interchangeable terms and thus calculated the
    guideline imprisonment range using the stiffer penalties applicable to crack. See
    U.S.S.G. § 2D1.1(c)(5). Davis-Cobbins was sentenced after the Supreme Court
    decided United States v. Booker, 
    543 U.S. 220
     (2005), to 90 months’ imprisonment to
    be followed by 5 years’ supervised release. Davis-Cobbins argues on appeal that the
    district court abused its discretion in sentencing him according to the crack cocaine
    guidelines absent any evidence or testimony that the substance was the crack
    cocaine form of cocaine base. The government concedes that the district court erred
    when it stated that there was no distinction between cocaine base and crack, but
    argues that the court did not clearly err in sentencing Davis-Cobbins pursuant to
    the higher guideline range. Because the district court did not make the required
    No. 05-1872                                                                     Page 2
    finding that the substance was crack, we vacate Davis-Cobbins’s sentence and
    remand for resentencing.
    On June 30, 2004, Davis-Cobbins sold 43.2 grams of cocaine base to a
    confidential source working with DEA agents. The probation officer described the
    drug in the Presentence Investigation Report (PSR) as cocaine base, and calculated
    Davis-Cobbins’ sentence according to the higher guidelines range for the crack
    cocaine form of cocaine base. Davis-Cobbins did not object to the PSR, but at his
    sentencing hearing he requested that the government retest the drugs to determine
    whether they were cocaine base or crack in light of United States v. Edwards,
    
    397 F.3d 570
    , 577 (7th Cir. 2005).
    The district court denied the request and said, “Whether this is cocaine base
    or crack cocaine, I’ll give him any politically correct nomenclature that you wish,
    but that’s what’s presently before the Court and the Court is now at sentencing and
    it believes that we should proceed with that sentencing.” When questioned by the
    court, counsel for the government said, “Your Honor, we believe that it’s -- crack
    cocaine I believe is cocaine base as well so --.” The court then said,
    Well, I’m going to use the terms until I get reversed or there’s something
    to the contrary, it’s cocaine base slash crack, and the Court does believe
    that that’s the appropriate definition. This, however, is going to be shown
    as 43.2 grams of cocaine base . . . . We will call it cocaine base because
    that’s what the Indictment calls it, that’s what he --that’s what he pled
    guilty to and that’s what the testing occurred [sic].
    The court then sentenced Davis-Cobbins near the bottom of the proposed guidelines
    range to a term of 90 months’ imprisonment.
    Davis-Cobbins argues that he should have been sentenced consistent with the
    cocaine powder guidelines rather than those for crack cocaine because the
    government failed to prove that he distributed crack. In 1993 Congress added a
    definition of cocaine base to the sentencing guidelines: “ ‘Cocaine base,’ for the
    purposes of this guideline, means ‘crack.’ ‘Crack’ is the street name for a form of
    cocaine base, usually prepared by processing cocaine hydrochloride and sodium
    bicarbonate, and usually appearing in a lumpy, rocklike form.” U.S.S.G. § 2D1.1(c),
    Note (D). We interpreted the definition to mean that only the form of “cocaine base”
    which is “crack” is eligible for the enhanced sentence under § 2D1.1. United States
    v. Adams, 
    125 F.3d 586
    , 592 (7th Cir. 1997). We recently reaffirmed this holding in
    Edwards, 
    397 F.3d at 577
    .
    Federal Rule of Criminal Procedure 32(i)(3)(B) requires the district court to
    make a factual finding on “any disputed portion of the presentence report or other
    No. 05-1872                                                                    Page 3
    controverted matter” that will affect sentencing. See United States v. Buchanan,
    
    362 F.3d 411
    , 412 (7th Cir. 2004); United States v. Chatmon, 
    324 F.3d 889
    , 893 (7th
    Cir. 2003). This rule serves two purposes—it protects the defendant’s due process
    right to be sentenced on the basis of accurate information and provides a clear
    record of the resolution of disputed facts for reviewing courts or agencies. See
    United States v. Musa, 
    946 F.2d 1297
    , 1307 (7th Cir. 1991); United States v.
    Eschweiler, 
    782 F.2d 1385
    , 1387-88 (7th Cir. 1986).
    In the present case, Davis-Cobbins argued at sentencing that there was not
    sufficient evidence to show that he sold the crack form of cocaine base. Because he
    contested an issue related to sentencing, the district court was required to make a
    factual finding as to the kind of controlled substance he sold. See Edwards v.
    United States, 
    523 U.S. 511
    , 513-14 (1998) (Sentencing Guidelines instruct judge “to
    determine both the amount and the kind of ‘controlled substances’ for which a
    defendant should be held accountable—and then to impose a sentence that varies
    depending upon amount and kind.”); United States v. Griffin, 
    194 F.3d 808
    , 829 (7th
    Cir. 1999) (“The sentencing court is required to determine whether the controlled
    substance at issue consisted of cocaine, crack, or both.”). The district court did not
    do so, instead stating simply that cocaine base and crack were interchangeable
    terms. As a result, we are unable to evaluate whether Davis-Cobbins was properly
    sentenced pursuant to the higher guidelines range for crack cocaine.
    Because the district court failed to make the required factual finding that
    Davis-Cobbins distributed the crack form of cocaine base, we VACATE
    Davis-Cobbins’s sentence and REMAND for resentencing.