United States v. Jackson , 80 F. App'x 769 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-14-2003
USA v. Jackson
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3411
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3411
UNITED STATES OF AMERICA
v.
KEVON JACKSON,
a/k/a FABIAN
Kevon Jackson,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 01-cr-00354
(Honorable Garrett E. Brown, Jr.)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 27, 2003
Before: SCIRICA, Chief Judge, NYGAARD and AMBRO Circuit Judges
(Filed: November 14, 2003 )
OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Kevon Jackson appeals his conviction and sentence for conspiracy to
distribute more than 50 grams of “crack” cocaine and more than five grams of powder
cocaine, in violation of 21 U.S.C. § 846. Jackson argues the government failed to
demonstrate by a preponderance of the evidence that the controlled substance was crack
cocaine. Jackson also alleges the enhanced sentence for cocaine base containing baking
soda as opposed to ordinary cocaine base violates the Eighth Amendment. For reasons
that follow, we will affirm the conviction and sentence.
I.
Kevon Jackson was charged in a seven-count federal indictment for drug offenses.
Jackson pled guilty to Count One, conspiracy with intent to distribute in violation of 21
U.S.C.A. § 841(a)(1).
The conspiracy involved six separate hand-to-hand cocaine sales, taking place
between November 14, 2000 and April 20, 2001. Drug Enforcement Administration
Special Agent Eric Brown, the case agent in the Jackson investigation, instructed a
cooperating witness to attempt to buy cocaine from Jackson. The cooperating witness,
who had a prior relationship with Jackson, purchased 8.9 grams of cocaine powder from
Jackson on November 14, 2000, a fact not in dispute.
Agent Brown next instructed the cooperating witness to purchase either cocaine
hydrochloride or “crack” cocaine from Jackson.1 On January 18, 2001, the witness asked
Jackson for cocaine hydrochloride and asked if it would “cook up well” into crack.
1
“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. Sentencing Guideline § 2D1.1.
2
Jackson replied, “If you’re worried about that, why don’t you just buy some crack.” The
cooperating witness bought 13.1 grams of a “yellow chunky powder substance” from
Jackson. The next four sales, two made on February 6, 2001 and one each on April 19,
2001 and April 20, 2001, also involved a “yellow chunky powder substance.”
At a hearing, the District Court heard testimony and evidence to determine the
identity of the drugs sold by Jackson. The first government witness, Agent Brown,
established his expertise in identifying drugs by testifying that he had been involved in
approximately 100 investigations, approximately 50 of which involved crack cocaine, and
that he had personally seen crack cocaine about 150 times. He testified that he had
purchased crack cocaine as an undercover agent five times and had received government
training to be able to identify crack cocaine. Agent Brown then identified the substance
sold by Jackson to the corroborating witness in each of the five transactions as crack
cocaine.
DEA forensic chemist Florence Wong also testified on behalf of the government.
Ms. Wong had analyzed all five non-powder samples of cocaine that the cooperating
witness purchased from Jackson, and testified that each sample contained both cocaine
base and sodium bicarbonate (baking powder).
In rebuttal, Jackson offered the transcript of the testimony of chemist Warren
James Woodford in United States v. Ricqui Watkins, Cr. No. 00-415 (D.N.J. Jan. 17,
2002). Woodford had testified that cocaine base “is not crack,” and gave a brief history
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of the term “crack.” Not finding the transcript of Woodford’s testimony “helpful or
persuasive,” the District Court concluded that Jackson had made five sales of crack
cocaine during the course of the conspiracy and sentenced him to 168 months
imprisonment.
Jackson contends the District Court erred in finding that his controlled substance
offense involved crack cocaine and in sentencing him under the Sentencing Guidelines’
crack cocaine enhancement provision. He also argues that enhanced punishment for
cocaine base with baking soda is irrational and violates the Eighth Amendment principle
of proportionality.
We have jurisdiction under 18 U.S.C. § 1291. We review the District Court’s
finding that the cocaine base was crack cocaine for clear error, United States v. Fuentes,
954 F.2d 151, 152-53 (3d Cir. 1992), reversing “only if we are left with a definite and
firm conviction that a mistake has been made.” United States v. Dent, 149 F.3d 180, 189
(3d Cir. 1998). But we retain plenary review of issues of law raised by application of the
Sentencing Guidelines. United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997).
II.
When applying Section 2D1.1 of the Sentencing Guidelines, the government must
prove by a preponderance of the evidence that the substances in question were crack
cocaine. United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997). In this case, the
government presented the testimony of DEA Special Agent Brown and DEA Forensic
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Chemist Wong. Agent Brown identified the crack cocaine pursuant to his extensive
experience, while Ms. Wong identified the substance as “cocaine base,” which the
Sentencing Guidelines equate with “crack.” 2 This evidence is more compelling than
testimony that this Court has previously accepted in identifying crack cocaine. See
Roman, 121 F.3d at 141 (holding expert police testimony sufficient to identify crack
cocaine). We find no “clear error” here and hold that the government met its burden of
proof.
Jackson next argues that the Sentencing Guidelines irrationally punish offenses
involving cocaine base with baking soda more severely than those involving cocaine base.
This distinction is inaccurate. The sentencing guidelines do not distinguish between
“cocaine base with baking soda” and “cocaine base.” Baking soda is used to dilute
2
Section 2D1.1 of the Sentencing Guidelines states that “[c]ocaine base, for the
purposes of this guideline, means ‘crack.’”
Cocaine is generally imported into the United States in powder cocaine form
(cocaine hydrochloride), a salt with the chemical formula C 17 H 22 ClNO 4 . Users generally
ingest this form of cocaine by dissolving it in water and then injecting it, or snorting it.
Cocaine base has the chemical formula C 17 H 21 NO 4 ; it is generally melted and the vapors
are inhaled. United States v. Booker, 70 F.3d 488, 490-91 (7th Cir. 1995).
There are two primary methods of converting powdered cocaine into cocaine base:
the crack cocaine method and the freebase cocaine method. The freebase method
involves dissolving powder cocaine in ammonia and adding ether or another organic
solvent. This process is dangerous, as the ether is flammable. Id. In the early 1980's a
much safer method for producing cocaine base developed, where powder cocaine is
dissolved in baking soda (sodium bicarbonate) and water, resulting in a pasty mixture. As
the pasty mixture dries, it makes a cracking sound, resulting in the street term “crack.” Id.The method for producing crack cocaine does not change its chemical structure, so
the substance cannot be distinguished from other cocaine bases through chemical testing.
5
cocaine hydrochloride, and the resulting substance is commonly called “crack.” The
presence of sodium bicarbonate is thus a strong indicator that a substance is crack
cocaine. United States v. Waters, 313 F.3d 151, 155 (3d Cir. 2002).
The sentencing guidelines punish crack cocaine more severely than cocaine
powder 3 to effectuate Congress’ intent. United States v. Frazier, 981 F.2d 92, 96 (3d Cir.
1992). 4 We have rejected a similar Eighth Amendment disproportionality claim in
Frazier, 981 F.2d at 95-96, as have other circuits, see United States v. Cyrus, 890 F.2d
1245, 1248 (D.C. Cir. 1989); United States v. Malone, 886 F.2d 1162, 1166 (9th Cir.
1989); United States v. Colbert, 894 F.2d 373, 374-75 (10th Cir. 1990). We similarly
reject this challenge.5
3
The punishment for a person convicted of a crack cocaine is not 100 times greater
than a similar offense involving cocaine powder, as Jackson implies. Instead, the
offender will receive a sentence between two and six and one-half times more severe than
the sentence of one convicted of trafficking the same amount of cocaine powder. United
States v. Spencer, 160 F.3d 413, 413 (7th Cir. 1998).
4
Congress has many reasonable grounds for differentiating between crack cocaine and
cocaine powder, due to differences in addictiveness, method of use, and collateral social
effects of the traffic in the drug. Id.5
As the D.C. Circuit explained:
There have been only three recognized instances of disproportionality rising to the
level of an eighth amendment violation. These involved condemning a man to
death for a non-homicide crime, imposing life without parole for a nonviolent
recidivist who passed a bad check for $100, and sentencing a man in the
Philippines to 15 years hard labor for falsifying a government form. A ten-year
sentence for drug possession simply does not approach the same level of gross
inequity.”
Cyrus, 890 F.2d at 1248.
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III.
For the foregoing reasons, we will affirm the judgment of the District Court.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Chief Judge
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