Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Kelvin Jones appeals his sentence under the United States Sentencing Guidelines ("U.S.S.G.") following his guilty plea to conspiracy to distribute more than 50 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a) (1). Jones contends that 21 U.S.C. § 841(b) (1) violates the equal protection clause of the fourteenth amendment by distinguishing between offenses involving cocaine powder and cocaine base without a rational basis. Further, Jones argues that 21 U.S.C. § 841 is unconstitutionally vague in its failure to define the term "cocaine base." We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Unconstitutionally Vague

We review de novo a challenge that a statute is unconstitutionally vague. United States v. Van Hawkins, 899 F.2d 852, 853 (9th Cir. 1990). A statute must satisfy two requirements in order to survive a challenge based on vagueness. Id., 899 F.2d at 854. First, the statute must define the criminal offense adequately so that the general public understands what conduct is prohibited; and second, the statute must "establish minimal guidelines to govern law enforcement." Id. (citation omitted). Outside the context of challenges implicating the first amendment, the defendant must establish that the statute is vague as applied to his particular case. Id.

21 U.S.C. § 841 mandates a substantially stiffer sentence for offenses involving cocaine base as opposed to those involving cocaine salt or powder. Although the statute does not explicitly define "cocaine base," the term "is not a catch-all term, but instead a term with scientific meaning which (1) establishes sufficient guidelines for law enforcement and (2) does not allow law enforcement to act with unfettered discretion." Van Hawkins, 899 F.2d at 854. The term "cocaine base" encompasses crack and rock cocaine. Id., 899 F.2d at 854 n. 2; United States v. Kinsey, 843 F.2d 383, 386 (9th Cir.), cert. denied, 488 U.S. 836 (1988) ("base" cocaine includes "rock" cocaine); United States v. Avant, 907 F.2d 623, 626 (6th Cir. 1990) (Congress specifically targeted crack cocaine in enacting section 841).

Here, Jones was convicted for his involvement in distributing rock cocaine. As applied to him, section 841(b) is not vague because rock cocaine is a recognized form of cocaine base. See Van Hawkins, 899 F.2d at 854. Thus, Jones' contention must fail. See id.¹ 

Equal Protection

Jones argues that the penalty scheme of 21 U.S.C. § 841(b) denies him equal protection because it bases the severity of punishment on whether the offense involved cocaine base. Jones claims that an individual dealing cocaine base is similarly situated to one dealing cocaine salt because the two substances are essentially the same substance, and that differential treatment of similarly situated individuals violates the equal protection clause of the fourteenth amendment.

We review a challenge to the constitutionality of a statute de novo. United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943 (1988). An equal protection challenge to a federal statute may be made under the fifth amendment due process clause. Mission Indians v. Am. Mgmt. & Amusement, 840 F.2d 1394, 1406 (9th Cir. 1987). Under the fifth amendment, equal protection requires that the legislative classification under 21 U.S.C. § 841(b) be rationally related to the purpose for which the classification was made. Savinovich, 845 F.2d at 839.

Under this analysis, the cocaine base-powder classification scheme does not violate equal protection because it furthers a legitimate governmental interest, namely, curtailing and deterring the distribution of crack cocaine. Congress' "market-oriented approach" to sentencing is rational and does not violate equal protection. See United States v. Malone, 886 F.2d 1162, 1166 (9th Cir. 1989) (sentencing scheme resulting in 100-to-1 cocaine base-to-cocaine sentencing ratio constitutional); Avant, 907 F.2d at 627; United States v. Buckner, 894 F.2d 975, 978-81 (8th Cir. 1990); United States v. Collado-Gomez, 834 F.2d 280, 280-81 (2d Cir. 1987) (per curiam), cert. denied, 485 U.S. 969 (1988).

AFFIRMED.