The Hon. Richard S. Arnold stepped down as Chief Judge of the United States 1

Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He

has been succeeded by the Hon. Pasco M. Bowman II.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

______________

No. 97-3423WM

______________

United States of America, *

*

Appellee, *

* On Appeal from the 

v. * United States District Court

* for the Western District

* of Missouri.

Lord Kang, *

*

Appellant. *

___________

Submitted: April 14, 1998

Filed: April 23, 1998

___________

Before RICHARD S. ARNOLD, Chief Judge, LAY and LOKEN, Circuit Judges. 1

___________

RICHARD S. ARNOLD, Chief Judge.

This is a drug case in which the issues on appeal relate to the

length of the sentence imposed on the defendant, Lord Kang. Kang pleaded

guilty to one count of possessing cocaine base or "crack" with intent to

distribute it, in violation of 21 U.S.C. § 841(a)(1) (1994), and one count

of distributing cocaine base or "crack," in
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violation of the same statute. The plea was entered in accordance with the

terms of a plea-bargain agreement made by Kang and the government. The

District Court imposed a sentence of 87 months (seven years and three

months) on each of the two counts, with the time to be served concurrently.

On this appeal, Kang makes three arguments, each of which we shall

discuss in turn. His principal point relates to the quantity of drugs

attributed to him by the sentencing court, a factor which is crucially

relevant to the length of the term of imprisonment. The District Court

attributed to Kang more than 50 grams of crack, yielding a base offense

level of 32. In making this decision, the Court held that Kang had agreed,

as part of the plea-bargain agreement, to this amount of drugs. We

disagree. In our opinion, the plea-bargain agreement contained no such

stipulation. We therefore reverse and remand for further proceedings with

respect to the sentence.

I.

For the most part, the arguments of both sides on appeal revolve

around the terms of the plea-bargain agreement. There is no question of

guilt or innocence as to the offenses of conviction, because Kang pleaded

guilty to both of them. Kang's first argument relates to the phrase

"cocaine base or 'crack,'" which appears several times in the agreement.

The substance that Kang is accused of having possessed and distributed is

referred to consistently as "cocaine base or 'crack.'" Kang complains that

his sentence was calculated as if the substance were simply "crack," a

particularly potent form of cocaine base. Under the rule of lenity, he

argues, the phrase "cocaine base or 'crack,'" appearing as it does in the

disjunctive, must be interpreted as limited to "cocaine base," as opposed

to "crack," because, Kang says, such an interpretation would produce a

shorter sentence.
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It is true that powder cocaine is less severely treated under the

Sentencing Guidelines than "crack," a form of the drug that can be smoked

and has been found by Congress to be more addictive. Kang's argument in

the present case must fail, however, because "cocaine base" and "crack,"

as those words are used in the Sentencing Guidelines, are the same thing.

Although chemically there are forms of cocaine base that are not "crack,"

the Guidelines make the two terms synonymous for sentencing purposes. The

notes to the Drug Quantity Table in the Sentencing Guidelines, Section (D),

provide as follows: "'cocaine base' for the purposes of this guideline,

means 'crack.'" Thus, the phrase "cocaine base or 'crack'" is simply an

expanded way of saying "crack." "Cocaine base" and "crack" are synonyms.

There is no difference between the two, so far as the Sentencing Guidelines

as presently written are concerned, and it therefore cannot be said that

"cocaine base" would produce a less severe sentence than an equal quantity

of "crack." The argument based on the rule of lenity therefore fails.

II.

Kang's next argument is more substantial. The two counts to which

Kang pleaded guilty, the offenses of conviction, involved a total of 6.84

grams of "crack." This quantity, under the Sentencing Guidelines, would

produce a base offense level of 26. The District Court sentenced Kang,

however, on the basis of between 50 and 150 grams of "crack," producing a

base offense level of 32. After a three-level decrease for acceptance of

responsibility under § 3E1.1 of the Guidelines, the total offense level

ended up at 29. This level, combined with Kang's criminal history category

of I, leads to a range of imprisonment of between 87 and 108 months. The

District Court sentenced Kang at the bottom of this range, 87 months. If

Kang had been sentenced on the basis of the 6.84 grams involved in the

offenses of conviction, assuming that the rest of the Guidelines

calculation remained unchanged, his total offense level would have been 23,

leading to an imprisonment range of 46 to 57
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months. Kang asserts that it was error to attribute to him more than 50

grams, in view of the fact that the government produced, at the sentencing

hearing, no evidence that Kang had been involved in any transactions beyond

the offenses of conviction.

If a defendant contests at sentencing a particular fact relevant to

sentencing, the government, in general, has the burden of proving that fact

by a preponderance of the evidence. The government admittedly introduced

no evidence to connect Kang with more than 6.84 grams. Instead, the

government claims, and the District Court held, that Kang had stipulated

to his involvement with between 50 and 150 grams. The stipulation, the

government argues, was contained in the plea-bargain agreement. The

relevant portion of the agreement appears in paragraph 10, and reads as

follows:

10. The parties understand and agree that the

stipulations and recommendations contained in the

agreement are not binding on either the Court or

the United States Probation Office. The United

States submits that pursuant to the Guidelines

promulgated pursuant to Title 28, United States

Code, Section 994, the most applicable offense

level as to Counts Three and Nine of the indictment

would be determined as follows:

A. Section 2D1.1 of the

Guidelines is the most applicable to the

statute of conviction, in that the

amount of cocaine base or "crack,"

including relevant conduct of defendant

under Section 1B1.3, is more than 50

grams and less than 150 grams of cocaine

base or "crack," yielding a Base Offense

Level of 32.

It is clear to us that the agreement contains no such stipulation.

The operative language is "the United States submits." All of the

information with respect to drug
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quantity appears following this language. The effect of this portion of

paragraph 10 is simply to set out the position of the government with

respect to sentencing. The defendant in no way agrees to this position.

Contrast the language of paragraph 9, which includes the phrase "the

parties stipulate." The language of paragraph 10 is unambiguous, and the

words cannot bear the construction put upon them by the government. The

government is bound by the agreement that it made.

The United States makes two arguments in response. First, it

contends that the construction that we have indicated would make the

agreement meaningless. Why would the government make a plea-bargain

agreement in the first place, it says, if the agreement did not nail down

the quantity of drugs, probably the single most important fact for

sentencing purposes? We do not know why the government made the agreement

that it did, but we are in no doubt as to the meaning of the agreement.

As to whether the agreement as written makes sense, we have little trouble

in concluding that it does. As with any contract, each party undertakes

certain obligations. The defendant agrees to plead guilty to two counts,

and the government agrees to dismiss four other counts. In paragraph 4,

the United States and the defendant agree on the facts constituting the two

offenses of conviction. The agreement contains numerous other undertakings

and promises on both sides. It certainly is not deprived of all sense by

interpreting the words "the United States submits" to have their ordinary

meaning.

Secondly, the government relies on certain remarks made by counsel

at the guilty-plea hearing. The following colloquy occurred among the

Court, the defendant's lawyer, and the Assistant United States Attorney:

THE COURT: Now, as I stated, the sentence will probably come

under the sentencing guidelines.
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Mr. Smith, have you made a calculation as to

the probable sentence called for under the

sentencing guidelines?

MR. SMITH: Yes, I have, Your Honor.

THE COURT: What would that be?

MR. SMITH: Your Honor, if I may refer to the reference

material. Your honor, based upon the facts and the

terms of the plea agreement, we have calculated

that Mr. Kang's likely sentence would be around

Level 29, or possibly Level 28, resulting in an

incarceration period of between 87 to 108 months,

or possibly slightly less.

MR. RUSH: Judge, if I may just for the record. Mr. Smith,

the stipulation of the plea agreement to the drug

amount places him at a Level 32. And I believe,

just for clarification, the 29 that he's referring

to would be after three points for acceptance.

In this passage, Mr. Smith is counsel for the defendant, and Mr. Rush is

counsel for the United States. The government stresses the fact that

defense counsel, in referring to the terms of the plea agreement, stated

that "we have calculated that Mr. Kang's likely sentence would be around

Level 29, or possibly Level 28, resulting in an incarceration period of

between 87 to 108 months . . .." Immediately thereafter, the Assistant

United States Attorney states that "the stipulation of the plea agreement

to the drug amount places him at a Level 32. And I believe, just for

clarification, the 29 that he's referring to would be after three points

for acceptance." 

The government did indeed refer to a "stipulation" as to the drug

amount. Defense counsel, however, does not characterize the plea agreement

as containing a
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stipulation to that effect, but simply states that "we have calculated .

. . Mr. Kang's likely sentence . . .." This language could amount to an

acknowledgment that the plea-bargain agreement, contrary to its own plain

terms, amounted to a stipulation as to the relevant amount of drugs, but

it certainly need not be read to convey such a meaning. The statement may

mean simply that the defense and the government have computed what the

sentence is likely to be if the government is able to substantiate with

proof its submission as to the appropriate quantity of drugs to be

attributed to the defendant. We do not believe that this ambiguous passage

is strong enough to convert the plain language of the plea-bargain

agreement into something that it is not. A stipulation by a defendant in

a criminal case, especially as to a matter this important, should be free

of ambiguity. Accordingly, we reject the government's argument that this

colloquy is clear enough to convert a statement of the government's

position into a stipulation of both parties. It follows that it was not

proper, on this record, to sentence defendant on the basis of 50 or more

grams of crack. Such a sentence would require evidence, and none has been

introduced.

III.

Defendant's last argument has to do with his claim that he should

have been given a two-level reduction in his offense level under the

"safety valve" provisions of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f)

(1994). Section 5C1.2 provides, in relevant part, as follows:

(1) The defendant does not have more than one criminal

history point, as determined under the sentencing

guidelines;

(2) The defendant did not use violence or credible threats of

violence or possess a firearm or other dangerous weapon

(or entice another participant to do so) in connection

with the offense;
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(3) The offense did not result in death or serious bodily

injury to any person;

(4) The defendant was not an organizer, leader, manager, or

supervisor of others in the offense, as determined under

the sentencing guidelines and was not engaged in a

continuing criminal enterprise, as defined in 21 U.S.C.

§ 848; and

(5) Not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the

offense or offenses that were part of the same course of

conduct or of a common scheme or plan. . . .

It is undisputed that defendant meets requirements (1) through (4).

At the sentencing hearing, the government took the position that he did not

meet requirement (5). In the opinion of government counsel, defendant had

not truthfully provided all information and evidence he had concerning the

offenses that were part of the same course of conduct or of a common scheme

or plan. In conversations with the government, defendant had not admitted

being involved with more than 6.84 grams of crack. That is, he had not

admitted the additional drug quantities that have been previously discussed

in this opinion. Accordingly, government counsel, who believed that

defendant was not being truthful, stated to the Court that he was not

eligible for "safety valve" treatment, and the Court agreed.

This argument is a replay, in different form, of the point discussed

above in part II of this opinion. Whether defendant truthfully denied

involvement with more than 6.84 grams is a question of fact. The

government cannot by its mere ipse dixit establish that defendant has been

untruthful. The issue requires evidence, or, as the government contends

in this case, an agreement or stipulation by the defendant. As we have

seen, there was no such evidence, nor was there such a stipulation. On the
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present record, therefore, it cannot be said that there was a sufficient

basis for rejecting the defendant's "safety valve" contention. Whether

that contention should be accepted or rejected depends on the facts, and

no relevant facts are in this record.

IV.

For the reasons we have given, the judgment must be reversed, and the

cause remanded for further proceedings. The conviction, as established by

defendant's plea of guilty, of course stands. The only question to be

determined on remand is the proper sentence, which will depend on the

amount of drugs attributable to the defendant. Either side will be free

to introduce evidence on this issue, and the government will bear the

burden of proving the drug quantity it contends for by a preponderance.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.