Unpublished Disposition, 917 F.2d 566 (9th Cir. 1989)

MEMORANDUM^** 

Adrian Timothy Demery appeals his sentence of ten years' imprisonment for distributing, and possession with intent to distribute, a substance containing cocaine base ("crack"). Demery claims the statute under which he was sentenced violates his due process and Eighth Amendment rights. We reject these claims and affirm the district court's sentence.

BACKGROUND

In early 1989, Demery was arrested and charged with six counts of cocaine base ("crack") offenses. Demery moved to dismiss the charges, and argued that the term "cocaine base" in the applicable statute was unconstitutionally vague in violation of his due process rights. The district court denied the motion.

Demery pleaded guilty to Counts IV through VI on June 6, 1989. At sentencing, he renewed his motion to dismiss on the same grounds and presented additional evidence that the term was vague. The district court again denied the motion and sentenced Demery to ten years' imprisonment for Counts IV and V, and a consecutive term of five years' imprisonment for Count VI. These are the mandatory minimum sentences under the applicable statutes, 21 U.S.C. § 841(b) (1) and 18 U.S.C. § 924(c). The government dismissed Counts I through III.

Demery now appeals his ten-year sentence on Counts IV and V. He again asserts that the terms "cocaine" and "cocaine base" are unconstitutionally vague in 21 U.S.C. § 841(b) (1). He claims this violates his due process rights by providing insufficient notice of prohibited conduct and allowing unfettered discretion in prosecutors.

Additionally, Demery claims that the mandatory minimum sentences for "cocaine base" offenses are disproportionate to the mandatory minimum sentences for "cocaine" offenses. He asserts that this is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a).

STANDARD OF REVIEW

We review de novo a claim that a statute is unconstitutionally vague. United States v. Van Hawkins, 899 F.2d 852, 853 (9th Cir. 1990). We also review de novo questions of law which implicate constitutional rights, such as Eighth Amendment challenges. See, United States v. Bohn, 890 F.2d 1079, 1080 (9th Cir. 1989).

DISCUSSION

A criminal statute is not void for vagueness, and thus does not violate a defendant's due process rights, if it meets a two-part test. First, the statute must define the offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited." Second, the statute must not "encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983).

We recently applied the test in United States v. Van Hawkins, 899 F.2d 852 (9th Cir. 1990), and determined that 21 U.S.C. § 841 is not unconstitutionally vague in penalizing cocaine base trafficking. Demery has presented nothing in the present case which warrants a different result.

His due process claim must, therefore, fail.

We have upheld the general constitutionality of 21 U.S.C. § 841(b) (1) against claims that it violates the Eighth Amendment's prohibition against cruel and unusual punishment. See, e.g., United States v. Hoyt, 879 F.2d 505, amended on other grounds, 888 F.2d 1257 (9th Cir. 1989); United States v. Ramos, 861 F.2d 228 (9th Cir. 1988). However, those cases involve the statute's application to cocaine salt rather than cocaine base.

Here, Demery argues that the specific cocaine base penalties are grossly disproportionate to the cocaine salt penalties, and that this is unconstitutional. We recently rejected this disproportionality argument as well. In United States v. Malone, 886 F.2d 1162 (9th Cir. 1989), we said:

[Defendant] contends further that the statute is unconstitutional because it treats irrationally 50 grams of cocaine base as equivalent to five kilograms of cocaine. Congress chose a "market-oriented approach" to sentencing in this statute. We have upheld the constitutionality of this approach.

Id. at 1166 (citing Hoyt) .

While, in Malone, we did not specifically state that we found the statute met Eighth Amendment standards, that was surely implicit in our decision. Moreover, other circuits have upheld the disparate cocaine and cocaine base sentences against Eighth Amendment claims. See, e.g., United States v. Buckner, 894 F.2d 975, 980-81 (8th Cir. 1990) (justifying the more severe penalties for cocaine base on the more serious nature of that drug); United States v. Cyrus, 890 F.2d 1245, 1248 (D.C. Cir. 1989) (stating there have only been three recognized instances of disproportionality rising to the level of an Eighth Amendment violation, and this statute does not rise to the same level of gross inequity).

Thus, Demery's Eighth Amendment claim fails as well.

AFFIRMED.