1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-4-1995

United States v Alton

Precedential or Non-Precedential:

Docket 94-3313

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Recommended Citation

"United States v Alton" (1995). 1995 Decisions. Paper 207.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-3313 and 94-3314 

 

UNITED STATES OF AMERICA 

 Appellant 

v. 

DARNELL LEE ALTON; HOWARD SCOTT; 

GINA LEWIS; ANGELA ALTON 

 

 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Criminal Action No. 92-cr-00257-1) 

 

 

 Argued June 27, 1995 

 Before: HUTCHINSON, ROTH and GARTH, Circuit Judges

(Opinion Filed August 4, 1995) 

 

Frederick W. Thieman 

United States Attorney 

Paul J. Brysh (Argued) 

Assistant U.S. Attorney 

633 U.S. Post Office and Courthouse 

Pittsburgh, PA 15219 

 Attorneys for Appellant and Cross-Appellee 

Gary B. Zimmerman, Esq. (argued) 

Suite 620 

312 Boulevard of the Allies 
Pittsburgh, PA 15222 

 Attorney for Appellee and Cross-Appellant 

 

OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

 Appellee Darnell Alton was one of four individuals 

charged in an indictment alleging various drug offenses. Count 

One charged Alton with conspiracy to possess and distribute 

cocaine and cocaine base ("crack cocaine"), in violation of 21 

U.S.C. § 846; Count Two charged Alton with possession with intent 

to distribute in excess of five grams of cocaine base, in 

violation of 21 U.S.C. § 841(a)(1); Count Three charged Alton 

with possession with the intent to distribute more than 500 grams 

of cocaine, in violation of 21 U.S.C. § 841(a)(1). 

 Between 1990 and 1992, Alton was a heavy crack cocaine 

trafficker in the Pittsburgh area. He employed a number of 

people who cooked cocaine powder into crack, stored it, and 

distributed it on the street. On July 23, 1991, following a tip 

from a confidential informant that Alton was in possession of a 

large quantity of cocaine, which he was selling from his house, 

police executed search warrants for Alton's person, residence, 

and car. Crack cocaine was found on Alton's person and cocaine 

powder and cash was found at Alton's residence. Three members of 

Alton's operation testified at trial about Alton's drug 

transactions. 
 Alton was found guilty at trial on Counts One and Two 

but was acquitted on Count Three. At sentencing, the district 

court departed downward from the United States Sentencing 

Guidelines ("Guidelines") range for cocaine base offenses and 

imposed a ten-year term of imprisonment and a five-year term of 

supervised release. The Government filed this appeal to 

challenge the district court's failure to follow the provisions 

of the Guidelines as they apply to offenses involving cocaine 

base. Because we find that the district court erred in departing 

downwards from the applicable guideline range, we will vacate the 

sentence and remand for resentencing.0

II. 

A. 

 At issue in this case are the provisions of the 

Sentencing Guidelines (U.S.S.G. § 2D1.1) that impose more severe 

sentences on those prosecuted for distribution or possession with 

intent to distribute crack cocaine0 than on those prosecuted for 

similar crimes involving cocaine powder.0 The disparity in the 

 

0 On cross-appeal, Alton alleges that the Government 

introduced evidence seized pursuant to a defective search 

warrant, thereby violating his rights as guaranteed by the Fourth 

Amendment to the United States Constitution. We have reviewed 

this claim and find it to be without merit. 

0 The Guidelines define cocaine base as "crack" -- "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, 

Drug Quantity Table, footnote. We use the terms "cocaine base" 

and "crack cocaine" interchangeably in this opinion to 

distinguish this form of cocaine from cocaine powder. 

0 This sentencing scheme applies to defendants convicted 

of the offenses enumerated in 21 U.S.C. § 841(a), including 

distribution or possession with intent to distribute controlled 

substances, and those convicted of attempting or conspiring to 
treatment of offenses involving the two substances originated in 

congressional action. 

 Pursuant to the Anti-Drug Abuse Act of 1986, Congress 

established basic sentencing levels for crack cocaine offenses. 

Congress amended 21 U.S.C. § 841 to provide for a 100:1 ratio in 

the quantities of cocaine powder and crack cocaine that trigger 

mandatory minimum penalties. Amended 21 U.S.C. § 841(b)(1)(A) 

establishes a mandatory ten-year term of imprisonment for 

offenses involving 5 kilograms of cocaine or 50 grams of cocaine 

base. And 21 U.S.C. § 841(b)(1)(B) provides for a mandatory 

five-year term of imprisonment for offenses involving 500 grams 

of cocaine or 5 grams of cocaine base. 

 Based on those statutory provisions, the Drug Quantity 

Table of U.S.S.G. § 2D1.1 treats any quantity of cocaine base as 

the equivalent of 100 times the same quantity of cocaine powder. 

Moreover, the Drug Equivalency Tables, U.S.S.G. § 2D1.1, pursuant 

to which the penalty for an offense involving one controlled 

substance is tied to or converted to the weight of an unrelated 

controlled substance for sentencing purposes, equate one gram of 

cocaine base to 20 kilograms of marijuana but one gram of cocaine 

to 200 grams of marijuana. 

B. 

 

commit those offenses, pursuant to 21 U.S.C. § 846. See United 

States v. Frazier, 981 F.2d 92, 94 n.1 (3d Cir. 1992) (explaining 

the sentencing scheme), cert. denied, 113 S. Ct. 1661 (1993), 

cert. denied sub nom. Pettus v. United States, 113 S. Ct. 1662 

(1993). 
 Although Alton was found guilty of crack cocaine 

offenses, the district court departed downward from the sentence 

range that the Guidelines prescribe for such offenses. The court 

attributed 422.68 grams of crack cocaine and 235.5 grams of 

cocaine powder to Alton. Pursuant to the Drug Equivalency Table, 

U.S.S.G. § 2D1.1, the court converted the 422.68 grams of crack 

cocaine to 8453.6 kilograms of marijuana and the 235.5 grams of 

cocaine powder to 47.1 kilograms of marijuana, arriving at a 

total of 8500.7 kilograms of marijuana, which corresponds to a 

base offense level of 34. The court added 4 levels to the base 

offense level pursuant to U.S.S.G. § 3B1.1(a), based on Alton's 

role in the offense, but granted a 3 point reduction for 

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. 

 Thus, the court fixed the total offense level at 35, 

which provides for a sentence range of 168-210 months. The court 

granted a downward departure from that range based on 18 U.S.C. 

§3553(b) and U.S.S.G. § 5K2.0,0 concluding that the Sentencing 

Commission did not adequately consider a mitigating factor -- the 

disparate impact that its policies would have on African-American 

males -- when it developed guideline ranges for crack cocaine.0 

 

0 U.S.S.G. § 5K2.0 states: 

Under 18 U.S.C. § 3553(b) the sentencing court may 

impose a sentence outside the range established by the 

applicable guideline, if the court finds "that there 

exists an aggravating or mitigating circumstance of a 

kind, or to a degree, not adequately taken into 

consideration by the Sentencing Commission in 

formulating the guidelines that should result in a 

sentence different from that described." 

0 The court adopted the reasoning of a district court 

case that since has been vacated in relevant part. See United 
 In justifying the departure, the court further relied 

on indications that Congress has reconsidered the rationality of 

the 1 to 100 ratio. Moreover, the court cited the 1993 annual 

report of the United States Sentencing Commission, which 

indicates that for the period from October 1, 1992, through 

September 30, 1993, "95.1 percent of the offenders incarcerated 

and subjected to the 1 to 100 ratio between crack and powdered 

cocaine [were] either black or Hispanics." Appendix at 846, 872-

73. 

 The court additionally discussed the Drug Equivalency 

Tables, U.S.S.G. § 2D1.1. The court concluded that the 

conversion of one gram of cocaine base to 20 kilograms of 

marijuana, pursuant to those tables, is arbitrary and capricious. 

Citing Motor Vehicle Manufacturers Assoc. v. State Farm Mutual 

Automobile Insurance Co., 463 U.S. 29 (1983) as authority, the 

court elected to ignore what it termed the "improper agency 

action" establishing the equivalency and to apply the mandatory 

minimum sentence established by Congress for similar offenses 

involving cocaine powder. 

III. 

A. 

 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) & (iii) are the 

statutory provisions that establish a mandatory minimum ten year 

penalty for offenses involving cocaine powder and crack cocaine. 

 

States v. Majied, 1993 U.S. Dist. LEXIS 15156 (D. Neb. July 29, 

1993), aff'd in part and vacated in part sub nom. United States 

v. Maxwell, 25 F.3d 1389 (8th Cir.), cert. denied, 115 S. Ct. 610 

(1994). 
The statute provides a 100:1 ratio between the amounts of crack 

cocaine and of cocaine powder which are required to activate the 

minimum mandatory penalty. Both parties acknowledge that the 

statute is constitutional on its face. However, the Government 

challenges the district court's conclusion that the guideline 

treatment of crack cocaine offenses is arbitrary and capricious. 

Moreover, the Government challenges the district court's downward 

departure from the Guidelines based on the disproportionate 

impact of the severe penalties for crack cocaine offenses on 

African-Americans. 

B. 

 The district court held that the Sentencing Commission 

acted in an arbitrary and capricious manner by providing for the 

conversion of one gram of cocaine base to 20 kilograms of 

marijuana for sentencing purposes, pursuant to the Drug 

Equivalency Tables in U.S.S.G. § 2D1.1. The court concluded that 

the Sentencing Commission violated the informal rulemaking 

procedures of the Administrative Procedures Act, 5 U.S.C. § 553, 

and that the guideline provisions under which Alton was sentenced 

are therefore void.0

 

0The parties did not raise, this Circuit has not decided, and we 

accordingly do not address, the issue of whether or not the 

Sentencing Commission, as an entity within the judicial branch, 

is an agency which is subject to the provisions of the APA. See

Washington Legal Found. v. U.S. Sentencing Com'n, 17 F.3d 1446, 

1450 (D.C.Cir. 1994) (Commission not subject to the provisions of 

the APA except as specifically enumerated). However, Congress did 

specifically provide in 28 U.S.C. § 994(x) that promulgation of 

the Guidelines by the Sentencing Commission would be subject to 

the rulemaking provisions of § 553 of the APA. See, e.g., United 

States v. Mistretta, 488 U.S. 361, 394 (1989) ("In contrast to a 

court, [the Commission's] rule-making is subject to the notice 
 In Motor Vehicle Manufacturers Assoc. v. State Farm 

Mutual Automobile Insurance Co., 463 U.S. at 43, the Supreme 

Court held that an agency adopting a rule pursuant to informal 

rulemaking procedures "must examine the relevant data and 

articulate a satisfactory explanation for its action including a 

`rational connection between the facts found and the choice 

made.'" The Commission provides such an explanation for the 

challenged Guideline provisions in U.S.S.G. § 2D1.1, comment 10, 

which states that the Commission "used the sentences provided in, 

and equivalences derived from, the statute (21 U.S.C. § 

841(b)(1)) as the primary basis for the Guideline sentences." 

 As the district court held, 21 U.S.C. § 841(b)(1) does 

not equate crack cocaine to another controlled substance or 

authorize the use of an equivalency table pursuant to which the 

penalty for an offense involving one controlled substance is tied 

to or converted to the weight of an unrelated controlled 

substance. Nonetheless, the statute does establish the 100:1 

ratio of cocaine powder to crack cocaine. The same ratio is 

reflected in the Drug Equivalency Tables, pursuant to which 1 

gram of cocaine is equivalent to 200 grams of marijuana and 1 

gram of crack cocaine is equivalent to 20 kilograms of marijuana. 

The Commission established drug equivalences as "a means for 

combining differing controlled substances to obtain a single 

offense level." U.S.S.G. § 2D1.1, comment 10. Clearly the 

 

and comment requirements of the [APA].") The parties to this 

appeal have agreed that the standard to be applied is "arbitrary 

and capricious." 
Commission looked to the statute as a guide in formulating the 

equivalences. The statute in turn was based on Congress's 

consideration of available data on the two forms of cocaine. 

 We have upheld the constitutionality of both the 

federal drug statutes (21 U.S.C. §§ 841(b)(1) & 846) and the 

guideline provisions (U.S.S.G. § 2D1.1) that treat crack cocaine 

offenses more severely than offenses involving an equal quantity 

of cocaine powder. See United States v. Frazier, 981 F.2d at 92 

(holding that distinctions between crack cocaine and cocaine 

powder for sentencing purposes do not constitute an equal 

protection violation and that the 100:1 ratio does not constitute 

cruel and unusual punishment); United States v. Jones, 979 F.2d 

317 (3d Cir. 1992) (holding guideline provisions imposing higher 

offense levels for offenses involving crack cocaine not to be 

unconstitutionally vague). 

 In United States v. Frazier, we explicitly rejected an 

equal protection challenge to the relevant statutory and 

guideline procedures. We first observed that the statutes and 

guidelines do not on their face classify defendants by race. 

Next, we determined that the provisions do not employ a facially 

"non-racial characteristic that strongly correlates with race for 

cultural or socioeconomic reasons as a sham disguising invidious 

racial classification." Frazier, 981 F.2d at 95 (citing Yick Wo 

v. Hopkins, 118 U.S. 356 (1886)). We concluded that there was 

"no evidence whatsoever that suggests that the distinction drawn 

between cocaine base and cocaine was motivated by any racial 

animus or discriminatory intent on the part of either Congress or 
the Sentencing Commission." Id. We held that absent such an 

explicit or inferable discriminatory purpose, the statutory 

distinction between cocaine base and cocaine is subject to 

rational basis review, which it withstands.0 Id. 

 In rejecting constitutional challenges to the 

distinction between cocaine base and cocaine powder in the 

federal sentencing scheme, courts have consistently found that 

Congress had a rational basis for treating offenses involving the 

two substances differently. In Jones, 979 F.2d at 320, we 

emphasized the chemical differences between crack cocaine and 

cocaine powder, concluding that "the Sentencing Guidelines have a 

reasonable basis to differentiate between cocaine base and 

cocaine salt." Moreover, other courts have emphasized the 

potency of crack cocaine, "the ease with which drug dealers can 

carry and conceal it, the highly addictive nature of the drug, 

and the violence which often accompanies trade in it." United 

 

0 The Jones and Frazier decisions appear to be in accord 

with the decisions of other federal courts of appeals. These 

federal courts have uniformly upheld the statutory and guideline 

penalties for crack cocaine offenses against due process, equal 

protection, and cruel and unusual punishment claims. See, e.g., 

United States v. Byse, 28 F.3d 1165 (11th Cir. 1994) (equal 

protection challenge), cert. denied, 115 S. Ct. 767 (1995); 

United States v. Coleman, 24 F.3d 37 (9th Cir.) (equal protection 

challenge), cert. denied, 115 S. Ct. 261 (1994); United States v. 

Fisher, 22 F.3d 574 (5th Cir. 1994) (Eighth Amendment challenge), 

cert. denied sub nom. Dunkins v. United States, 115 S. Ct. 529 

(1994), ; United States v. Palacio, 4 F.3d 150 (2d Cir. 1993) 

(due process challenge), cert. denied, 114 S. Ct. 1194 (1994); 

United States v. Easter, 981 F.2d 1549 (10th Cir. 1992) (due 

process and equal protection challenge), cert. denied, 113 S. Ct. 

2448 (1993); United States v. Avant, 907 F.2d 623 (6th Cir. 1990) 

(vagueness and Eighth Amendment challenge). 
States v. Lattimore, 974 F.2d 971, 975 (8th Cir. 1992), cert. 

denied, 113 S. Ct. 1819 (1993).0

 We conclude, therefore, that no "improper" agency 

action was involved in the Sentencing Commission's establishment 

of the Equivalency Tables, at least insofar as we are involved 

here with the 100:1 ratio between crack cocaine and cocaine 

powder. 

C. 

 We next address the Government's contention that the 

district court erred in concluding that 18 U.S.C. § 3553(b) and 

U.S.S.G. § 5K2.0 authorize a downward departure from the 

applicable guideline range on the grounds that the Sentencing 

Commission did not adequately consider the disparate impact that 

its policies would have on African-American males when it 

developed guideline ranges for crack cocaine offenses. 

 As set forth above, U.S.S.G. § 5K2.0 adopts the mandate 

of 18 U.S.C. § 3553(b), stating that a sentencing court may 

impose a sentence outside the range established by the applicable 

guideline upon finding the existence of "an aggravating or 

mitigating circumstance of a kind, or to a degree, not adequately 

taken into consideration by the Sentencing Commission in 

 

0 See also United States v. Lawrence, 951 F.2d 751 (7th 

Cir. 1991) (holding that the penalty scheme "evinces a rational 

purpose and does not violate the Due Process clause"); United 

States v. Buckner, 894 F.2d 975 (8th Cir. 1990) (concluding that 

the 100:1 ratio is rationally related to the congressional 

objective of protecting public welfare). 
formulating the guidelines that should result in a sentence 

different from that described." U.S.S.G. § 5K2.0. 

 In Frazier, we held that even assuming the appellants' 

claim that "a very high percentage of defendants convicted for 

cocaine base offenses are black, while defendants convicted for 

cocaine offenses are more likely to be white," such racial 

disparities are insufficient to establish that U.S.S.G. § 2D1.1 

violates the equal protection clause. We held that "[e]ven 

conscious awareness on the part of the legislature that the law 

will have a racially disparate impact does not invalidate an 

otherwise valid law," provided that such awareness does not play 

a causal role in the statute's passage. Frazier, 981 F.2d at 95. 

 Although the issue here is not whether the relevant 

guideline provisions are invalid on the grounds of disparate 

impact but only whether a downward departure is warranted, the 

reasoning of Frazier is instructive. Moreover, every appellate 

court that has considered the matter has held that the impact of 

the guideline treatment of crack cocaine is not a proper ground 

for downward departures from the applicable guideline range. 

These courts have rejected defendants' arguments that the 

continued enforcement, rather than the enactment, of the 

challenged sentencing provisions is unconstitutional.0

 

0 See, e.g., United States v. Maxwell, 25 F.3d 1389 (8th 

Cir.), cert. denied, 115 S. Ct. 610 (1994); United States v. 

Bynum, 3 F.3d 769 (4th Cir. 1993), cert. denied, 114 S. Ct. 1105 

(1994); United States v. Lattimore, 974 F.2d at 971; United 

States v. Haynes, 985 F.2d 65 (2d Cir. 1993). 
 In United States v. Bynum, 3 F.3d at 774-75, the Fourth 

Circuit rejected the defendant's argument that the Sentencing 

Commission's alleged failure to consider the disparate impact on 

African-Americans of the 100:1 powder-to-crack ratio constitutes 

a ground for a downward departure. The court reasoned that a 

showing that the Commission failed to take a factor into account 

cannot suffice to justify a downward departure. Indeed, the 

court explained, "[f]rom the countless factors that constitute 

the human experience, the Commission necessarily considered only 

a few. Any defendant can identify something about himself that 

the guidelines do not address." Id. at 774. Therefore, the 

court emphasized, the factor alleged not to have been considered 

must also be a factor for which a sentence outside the guidelines 

"should result." Id.

 Observing that the proposed mitigating circumstance in 

Bynum rested on membership in a class rather than on a factor 

personal to the defendant, the court held that the guidelines' 

failure to address the impact of a provision on a class should 

result in a class-wide downward departure "only when failure to 

provide it would deprive the class of equal protection." Id. at 

775. Thus, the court rejected the "extraordinary relief" that 

the defendant requested on the grounds that the 100:1 powder-tocrack ratio was not enacted pursuant to a discriminatory purpose 

and thus did not violate the constitutional principle of equal 

protection. Id.; see also Maxwell, 25 F.3d at 1401 (adopting the 

Fourth Circuit's reasoning and stating that allowing such a 
class-wide departure would "impede Congress's policy decision to 

treat cocaine base more harshly than powder cocaine"). 

 Alton has not established facts or circumstances 

peculiar to himself or his offense that justify a downward 

departure. He justifies departure from the guidelines solely on 

the overall impact of the guidelines, a factor present in all 

crack cocaine cases. Such a departure cannot be reconciled with 

the language of the guidelines. 

 Indeed the reasoning of Bynum and other cases in which 

courts have refused to affirm downward departures based on the 

disparate impact of the crack cocaine sentencing scheme rests 

squarely on the language of the guidelines. The Commentary to 

U.S.S.G. § 5K2.0 states that "[i]n the absence of a 

characteristic or circumstance that distinguishes a case as 

sufficiently atypical to warrant a sentence different from that 

called for under the guidelines, a sentence outside the guideline 

range is not authorized." The Commission likewise addresses the 

subject of departures in the Introduction to Chapter One of the 

Guidelines, stating: 

The Commission intends the sentencing courts to treat 

each guideline as carving out a "heartland," a set of 

typical cases embodying the conduct that each guideline 

describes. When a court finds an atypical case, one to 

which a particular guideline linguistically applies but 

where conduct significantly differs from the norm, the 

court may consider whether a departure is warranted. 

U.S.S.G. Manual, Ch.1, Part A4(b). The Commission noted its 

expectation "that despite the courts' legal freedom to depart 

from the guidelines, they will not do so very often." Id.
IV. 

 We limit our decision to holding that the disparate 

impact of the severe penalties for crack cocaine offenses on 

African-Americans is not a valid ground for departure from the 

guideline ranges for crack cocaine offenses. Accordingly, we 

vacate the sentence and remand for resentencing within the 

applicable guideline ranges. We defer to Congress and the 

Sentencing Commission to address the related policy issues and to 

consider the wisdom of retaining the present sentencing scheme.