United States of America, Plaintiff-appellee, v. Henry Booker, Defendant-appellant, 70 F.3d 488 (7th Cir. 1995)

This appeal presents the question of whether the statutory and sentencing guideline provisions mandating separate penalties for the distribution of "cocaine" and "cocaine base" are ambiguous. Henry Booker pled guilty to the distribution of crack cocaine in violation of 21 U.S.C. § 841(a) (1). He received a sentence of 20 years of imprisonment.¹  1] Booker was sentenced under the statutory and guideline provisions for "cocaine base." If the penalties for "cocaine" had been applied, his sentence would have been approximately halved: his guideline range would have been 100-125 months.

Booker argues that in scientific terms, "cocaine" and "cocaine base" are synonymous. According to Booker, a scientist attempting to interpret the statutory and guideline provisions would not know whether to sentence him for "cocaine" or "cocaine base." Thus, he contends that the rule of lenity should apply and that he should be sentenced under the lesser penalties specified for "cocaine." Because we do not agree that the statutory and guideline provisions are ambiguous, we affirm Booker's sentence.

In 21 U.S.C. § 841(b), Congress set forth mandatory minimum sentences for certain offenses involving the distribution of controlled substances. Under Sec. 841(b), the mandatory minimum sentence for a given quantity of "cocaine base" is equivalent to the statutory minimum for 100 times that amount of "cocaine." Section 841 contains two tiers of statutory minima. First, Sec. 841(b) (1) (B) (iii) sets a mandatory minimum of 5 years for offenses involving "5 grams or more of a mixture or substance ... which contains cocaine base." In contrast, the 5-year minimum does not apply unless the defendant is held responsible for at least 500 grams of "a mixture or substance containing ... cocaine, its salts, optical and geometric isomers, and salts of isomers." Id. at Sec. 841(b) (1) (B) (ii) (II). Second, a 10-year mandatory minimum applies to offenses involving 50 grams or more of cocaine base or 5 kilograms or more of cocaine. 21 U.S.C. § 841(b) (1) (A). Neither Sec. 841 nor any other statute defines the terms "cocaine" or "cocaine base."

Under the guidelines, the base offense level for offenses involving a quantity of cocaine base is the same as the offense level for offenses involving 100 times that quantity of cocaine. For example, Booker was held accountable for 500 grams to 1.5 kilograms of cocaine base. This gave him a base offense level of 36. U.S.S.G. Sec. 2D1.1(c) (2). In comparison, level 36 is applied to offenses involving 50 kilograms but less than 150 kilograms of cocaine. Id. If Booker's offense had involved cocaine, his base offense level would have been 26. Id. at Sec. 2D1.1(c) (7).

The guidelines do not offer a definition of "cocaine" and until recently did not define "cocaine base." An amendment that became effective in November 1993 defines "cocaine base" as "crack." U.S.S.G. Sec. 2D1.1; U.S.S.G.App.C, Amendment 487.²  However, the 1990 version of the guidelines was used in this case.³  Amendment 487 represents a substantive change to the text of the guidelines rather than a clarification to the guidelines' commentary. United States v. Camacho, 40 F.3d 349, 354 (11th Cir. 1994), cert. denied, --- U.S. ----, 115 S. Ct. 1810, 131 L. Ed. 2d 735 (1995). Amendments that include substantive changes are not applied retroactively unless the Sentencing Commission so specifies. Id.; see also United States v. Alvarez, 914 F.2d 915, 917 n. 1 (7th Cir. 1990), cert. denied, 500 U.S. 934, 111 S. Ct. 2057, 114 L. Ed. 2d 462 (1991). The Commission has not specified that Amendment 487 applies retroactively.⁴  Thus, Amendment 487 does not apply to Booker's case, so the terms "cocaine" and "cocaine base" are not defined by either the statute or the guidelines for the purposes of this appeal.

II. Scientific Definitions of Cocaine and Cocaine Base

At sentencing, Booker and the government stipulated to the testimony of several scientists that appears in the transcript of the sentencing hearing in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994). The transcript was placed into the record as evidence. The scientists who testified were James Woodford, a defense witness, John Marshall Holbrook, an expert called by the court, and Joey Douglas Clarke, a scientist employed by the Drug Enforcement Agency who was called by the government. The three witnesses agreed on a number of basic points concerning the chemical properties of cocaine and cocaine base, of which we will take judicial notice.⁵ 

Cocaine in its naturally occurring form is a base⁶  with the chemical formula C sub17 H sub21 NO sub4 .⁷  Davis Tr. at 6. Because cocaine is a base, the phrase "cocaine base," in scientific terms, is redundant. To a scientist, "cocaine" and "cocaine base" are synonymous; they both refer to a substance with the formula C sub17 H sub21 NO sub4 . Id. at 29, 111, 169.⁸ 

Cocaine, however, is rarely used in its naturally occurring form, at least in the United States. Before cocaine is imported into the United States, it is generally converted into cocaine hydrochloride, more commonly known as powder cocaine. This process involves two steps. First, coca leaves are converted into coca paste "by mixing the leaves with an alkaline material (e.g., sodium bicarbonate),⁹  an organic solvent (e.g., kerosene), and water." Id. at 11.¹⁰  Second, the coca paste is dissolved in hydrochloric acid and water. The hydrochloric acid (an acid) combines with the cocaine (a base) to produce a salt, cocaine hydrochloride. See id. at 12.¹¹  This salt, known as powder cocaine, is easily dissolved in water, and it may be ingested, insufflated (snorted), or injected.¹²  It is not smokable, however, because cocaine hydrochloride decomposes at approximately the same temperature at which it vaporizes; thus, smoking cocaine hydrochloride produces no "physiological or psychotropic effects" (i.e., the user will not experience a "high" because the cocaine has decomposed). Id. at 12-13. The chemical formula of cocaine hydrochloride is C sub17 H sub22 ClNO sub4 .¹³  Davis Tr. at 44.

Cocaine hydrochloride may be converted into what is referred to as freebase cocaine or cocaine freebase. Essentially, "freebase" means that the base (cocaine) is "freed" from the hydrochloride and converted into the same chemical state it was in before it became a salt. See Davis Tr. at 17. Freebase can be manufactured in different ways. In the 1970s, freebase would generally be made by dissolving cocaine in ammonia and adding ether or another organic solvent. See id. at 14; Cocaine and Federal Sentencing Policy at 13. This process, however, is dangerous to both the producer and the user because ether is flammable. Cocaine and Federal Sentencing Policy at 13.¹⁴  A safer process for manufacturing freebase cocaine involves dissolving cocaine hydrochloride in baking soda and water, boiling the mixture until only a solid substance is left, and allowing it to dry. Id. at 14; see also Davis Tr. at 17. The result of this latter process is commonly known as crack. Cocaine and Federal Sentencing Policy at 14.¹⁵  Freebase cocaine has a lower melting point than cocaine hydrochloride, so it can be smoked without the active ingredient (cocaine) decomposing. Davis Tr. at 14.¹⁶  Freebase cocaine, however, is not water soluble (does not dissolve in water), so it cannot be injected or snorted. See id. at 144-45. All forms of freebase cocaine, including crack, have the same chemical formula as cocaine: C sub17 H sub21 NO sub4 . Id. at 13.

III. Are the Sentencing Provisions Ambiguous?

The sentencing schemes in Sec. 841(b) and Sec. 2D1.1 are widely considered to establish two tiers of penalties for offenses involving cocaine: higher penalties for "crack" cocaine and lesser penalties for powder cocaine. Our task, at least in this case, would be easy if the provisions simply said "crack" and "powder." The problem is that they do not; instead, they specify "cocaine" and "cocaine base." The scientific evidence introduced by Booker shows that the terms "cocaine" and "cocaine base" refer to the same substance--a base with the chemical formula C sub17 H sub21 NO sub4 . A scientist trying to determine which sentencing provision applies to Booker would conclude that both apply because the crack cocaine that he distributed is a substance with the chemical formula C sub17 H sub21 NO sub4 . Thus, Booker argues that the sentencing provisions are ambiguous.¹⁷ 

In United States v. Blanding, 53 F.3d 773 (7th Cir. 1995), this court rejected the defendants' argument that Sec. 841(b) is ambiguous, stating that "Congress has defined the substance [cocaine base] ... with appropriate clarity." Id. at 776. Booker urges us to revisit Blanding in light of the aforementioned scientific evidence. The Blanding court did not have the benefit of the extensive scientific evidence presented in this case.

When presented with this same scientific evidence, the Davis court held that " [b]ecause ... the definitions [of cocaine and cocaine base] are identical, there is unquestioned ambiguity on the face of the statute." Davis, 864 F. Supp. at 1306. Thus, the court applied the rule of lenity. Id. Given the agreement among all three scientists (the defense expert, court expert, and government expert) that the terms "cocaine" and "cocaine base" refer to the same substance--a base with the chemical formula C sub17 H sub21 NO sub4 --we are compelled to conclude that we cannot discern from the plain language of either the statute or the pre-1993 guidelines which punishments apply to crack cocaine. Our examination of the meaning of the sentencing provisions, however, does not end with the plain language. Before concluding that the provisions are ambiguous, we must examine the "language, structure, legislative history, and motivating policies" for evidence of what Congress and the Sentencing Commission intended. United States v. R.L.C., 503 U.S. 291, 305-06, 112 S. Ct. 1329, 1338-39, 117 L. Ed. 2d 559 (1992) (plurality opinion). The rule of lenity does not apply unless, "after a court has 'seize [d] [on] everything from which aid can be derived, it is still left with an ambigu [ity].' " Chapman v. United States, 500 U.S. 453, 463, 111 S. Ct. 1919, 1926, 114 L. Ed. 2d 524 (1991), quoting United States v. Bass, 404 U.S. 336, 347, 92 S. Ct. 515, 522, 30 L. Ed. 2d 488 (1971).¹⁸ 

Despite the extensive scientific evidence introduced by Booker that cocaine and cocaine base are actually the same substance, the legislative history of Sec. 841(b) demonstrates that Congress intended the terms to have different meanings. Whereas the Davis court was bound by then-existing Eleventh Circuit precedent to define cocaine and cocaine base according to their scientific meaning, Davis, 864 F. Supp. at 1306, this circuit has no such precedent. Thus, we may examine the legislative history to aid our understanding of the terms.

In 1986, Congress passed the Anti-Drug Abuse Act (ADAA), which established the enhanced penalties for cocaine base. The history of the ADAA reveals that Congress was targeting crack cocaine when it passed the stiffer sentencing provisions for "cocaine base." First, a number of legislators applauded the ADAA and related legislation for providing enhanced penalties for offenses involving crack. See, e.g., 132 Cong.Rec. S13741-01 (Sept. 26, 1986) (statement of Sen. Chiles) ("We have enhanced the penalties for drugs, but especially for crack cocaine."); cf. 132 Cong.Rec. S15934-01 (Oct. 10, 1986) (statement of Sen. Chiles) (the act includes "mandatory penalties especially dealing with crack cocaine"); 132 Cong.Rec. S14270-01 (Sept. 30, 1986) (statement of Senator Riegle) (the act "updates the Controlled Substances Act to include new and devastating drugs like 'crack' and designer drugs"). In addition, Congress held hearings where experts testified concerning the emergence of crack cocaine and the dangers that it poses. See "Crack" Cocaine, Hearing before the Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United States Senate, 99th Cong., 2d Sess. (July 15, 1986); The Crack Cocaine Crisis, Joint Hearing before the Select Committee on Narcotics Abuse and Control, House of Representatives, and the Select Committee on Children, Youth, and Families, House of Representatives, 99th Cong., 2d Sess. (July 15, 1986). Finally, during the spring and summer of 1986 (when the ADAA was being discussed), Members of the Senate and the House of Representatives gave much attention to the necessity of addressing the problem of crack cocaine. See S.Res. 464, Designating "Crack/Cocaine Awareness Month," 132 Cong.Rec. S11266-01, 99th Cong., 2d Sess. (Aug. 11, 1986); Crack, 132 Cong.Rec. S00000-24 (Aug. 7, 1986); Time for Higher Awareness About Crack/Cocaine, 132 Cong.Rec. E2528-03 (July 22, 1986); Rock and Crack Cocaine, 132 Cong.Rec. S00000-22 (June 17, 1986); "Crack"--Epidemic in Need of a Cure, 132 Cong.Rec. E2328-01 (June 6, 1986); Crack and Crime, 132 Cong.Rec. S7123-01 (June 9, 1986); What Parents Don't Know About Crack, 132 Cong.Rec. S5436-03 (May 6, 1986); The Urgent Need to Attack "Crack," 132 Cong.Rec. E944-01 (Mar. 21, 1986).¹⁹ 

At least one other circuit has concluded that no ambiguity exists because the legislative history reveals that Congress intended "cocaine base" to mean crack. In United States v. Fisher, 58 F.3d 96 (4th Cir. 1995), cert. denied, --- U.S. ----, 116 S. Ct. 329, 133 L. Ed. 2d 229 (1995), the Fourth Circuit rejected the argument that the sentencing provisions are ambiguous, holding that the enhanced penalties apply to crack and the lesser penalties apply to all other forms of cocaine. Id. at 99; see also United States v. Munoz-Realpe, 21 F.3d 375, 377-78 (11th Cir. 1994) (defining "cocaine base" as crack under 21 U.S.C. § 960(b)); United States v. Shaw, 936 F.2d 412, 416 (9th Cir. 1991) (defining "cocaine base" as crack under Sec. 841(b)); cf. United States v. Jackson, 64 F.3d 1213, 1219-20 (8th Cir. 1995) (rejecting argument that sentencing provisions for cocaine and cocaine base are ambiguous).²⁰  We agree with the Fisher court's reasoning. In 1986, Congress was concerned about the emergence of a new, smokable form of cocaine that was more dangerous than powder cocaine, less expensive, and highly addictive. See, e.g., "Crack Cocaine" hearing at 8 (statement of Senator Chiles) ("We all are familiar with cocaine; it has been with us for a long time. Crack, however, is something altogether different. It is far more powerful, far cheaper, far more addictive, and increasingly available.").²¹  Whether the dangers of crack justify the 100:1 sentencing ratio is a matter of debate; the Sentencing Commission's proposal to eliminate the disparity is evidence that some experts believe not.²²  But whatever the merits of the distinction, it is clear that Congress intended the enhanced penalties to apply to crack cocaine and the lesser penalties to apply to all other forms of cocaine. Likewise, the same concerns undoubtedly motivated the Sentencing Commission when it adopted the distinction between cocaine and cocaine base for the purposes of the guidelines.²³  Thus, we hold that the sentencing provisions for "cocaine" and "cocaine base" are not ambiguous because although the terms have the same scientific meaning, both Congress and the Sentencing Commission intended "cocaine base" to mean crack cocaine.²⁴ 

The sentencing provisions for cocaine and cocaine base are not ambiguous: the enhanced penalties apply to crack cocaine, and the lesser penalties apply to all other forms of cocaine. Although the terms "cocaine" and "cocaine base" have the same scientific meaning, Congress and the Sentencing Commission intended the enhanced penalties to apply only to crack, which is defined as a form of "cocaine freebase prepared by a method which does not use solvents." The Crack Cocaine Crisis hearing at 130; cf. Part II, supra. Because Booker distributed crack cocaine, the sentencing provisions for "cocaine base" were properly applied. Accordingly, Booker's sentence is

AFFIRMED.