## 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 th e length of the sentenc e imposed on the defendant, Lord Kang. Kang pleaded guiltyto 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 th e terms of a plea-bargain agreement made by Kang and the government. Th e District C ourt imposed a sentence of 87 months (seven years and thre e 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 shal l discuss in turn. His principal point relates to the quantity of drug s attri buted to him by the sentencing court, a factor which is cruciall y relevant to the length of the term of imprisonment. The District Cour t attribute d to Kang more than 50 grams of crack, yielding a base offens e level of 32. In making this decision, the Court held that Kang had agreed , as part o f the plea-bargain agreement, to this amount of drugs. W e dis agree. In our opinion, the plea-bargain agreement contained no suc h stipulation. We therefore reverse and remand fo r further proceedings with respect to the sentence.

I.

For th e most part, the arguments of both sides on appeal revolv e 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 phras e "cocaine base or 'crack,'" which appears several times in the agreement. The substance that Ka ng is accused of having possessed and distributed is referred to consistently as "cocaine base or 'crack.'" Kang complains tha t his s entence was calculated as if the substance were simply "crack," a particula rlypotent form of cocaine base. Under the rule of lenity, h e argues, the phrase "c ocaine 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.

## -3- It is true that powder cocaine is less severely treated under th e 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 us ed in the Sentencing Guidelines, are the same thing. Although chemically t here are forms of cocaine base that are not "crack," the Guidelines make the two terms synonymous for sentencing purposes. Th e 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 sayin g "crack." "Cocaine base" and "crack" are synonyms. There is no difference between the two, so far as the Sentencing Guideline s as presently written are concerned, and it therefore cannot be said that "cocaine base" would produce a less severe sente nce 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 whic h 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
res ponsibilityunder § 3E1.1 of the Guidelines, the total offense leve l ended up at 29. This level, combined with Kang's criminal history categor y of I, leads to a rang e of imprisonment of between 87 and 108 months. The District Court senten ced Kang at the bottom of this range, 87 months. If Kang had been sentenced on the basis of the 6.84 grams involved in th e offens es of conviction, assuming that the rest of the Guideline s 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 p roduced, at the sentencing hearing, no evidence that Kang had been involved in any transactions beyon d the offenses of conviction.

If a defe ndant contests at sentencing a particular fact relevant to sentencing, the government, in general, has the burden of proving that fac t by a preponderance of the evidence. The government admittedly introduced
no evi dence to connect Kang with more than 6.84 grams. Instead, th e government claims, and the District Court held, that Kang had stipulated to his in volvement with between 50 and 150 grams. The stipulation, th e govern ment argues, was contained in the plea-bargain agreement. Th e relevant portion of the agreement appears in paragraph 10, and reads a s follows:

10. The parties understand and agree that th e

st ipulations and recommendations contained in th e agreem ent are not binding on either the Court o r the United States Probation Office. The Unite d States submits that pursuant to the Guideline s pro mulgated pursuant to Title 28, United State s Code, Section 994, the most applicable offens e level as to Counts Three an d Nine of the indictment would be determined as follows:

A. Section2D1.1 of th e Guidelines is the most applica ble to the st atute of conviction, in that th e am ount of cocaine base or "crack, " inc luding relevant conduct of defendant under Section 1B1.3, is more than 5 0 grams and less than 150 grams of cocaine base or "crack," yielding a Ba se Offense Level of 32.

It is c lear to us that the agreement contains no such stipulation

. The operative language is "the United States submits." All of th e information with respect to drug

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quantityappears following this language. The effect of this portion of par agraph10 is simply to set out the position of the government wit h respect to sentencing. The defendant in no way agrees to this position. Cont rast the language of paragraph 9, which includes the phrase "th e 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, i t cont ends that the construction that we have indicated would make th e agreem ent meaningless. Why would the government make a plea-bargai n agreement in the firs t place, it says, if the agreement did not nail down the quan tity of drugs, probably the single most important fact fo r sentencing purposes? We do not know why the gov ernment made the agreement tha t it did, but we are in no doubt as to the meaning of the agreement

. As to whether the agreement as written makes sen se, 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 ag rees to dismiss four other counts. In paragraph 4, the United States and the defendant agree on the facts constituting the tw o offenses of conviction. The agreement contains numerous other undertaking s and promises on both sides. It certainly is not deprived of all sense by interpreting the word s "the United States submits" to have their ordinary meaning.
Secondly, the government relies on certain remarks made by counse l at the guilty-plea hearing. The following colloquy occurred among th e Court, the defendant's lawyer, and the Assistant United States Attorney:

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

under the sentencing guidelines.

## -6- Mr. Smith, have you made a calculation as t o the probable sentence called for under th e 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 referenc e

material. Your honor, base d upon the facts and the term s of the plea agreement, we have calculate d that Mr. Kang's likely sentence would be aroun d Level 29, or possibly Level 28, resulting in a n incarc eration period of between 87 to 108 months , or possibly slightly less.
MR. RUSH: Judg e, if I may just for the record. Mr. Smith ,

the stipulation of the plea agreement to the dru g amou nt 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 fo r the United States. The government stresses the fact tha t 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 o f between 8 7 to 108 months . . .." Immediately thereafter, the Assistan t United States Attorne y states that "the stipulation of the plea agreement to the drug amount places him at a Level 32. And I believe, just fo r 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 dru g amount. Defense counsel, however, does not characterize the plea agreemen t as containing a

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stipulationto that effect, but simply states that "we have calculated .

. . Mr. Kang's likely sentence . . .." This language could amount to an acknowledgment that t he 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 m eaning. The statement may
mean simply that the defense and the government have computed what th e sentence is likely to be if the government is able to substantiate wit h pro of its submission as to the appropriate quantity of drugs to b e attributed to the defendant. We do not believe that this ambiguous passag e is stron g enough to convert the plain language of the plea-bargai n agreement into someth ing that it is not. A stipulation by a defendant in a criminal case, espe cially as to a matter this important, should be free of ambiguity. Accord ingly, we reject the government's argument that this colloquy is clear enough to convert a statement of the government' s positioninto 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 e vidence, and none has been introduced.

III.

Defendant's last argument has to do with his claim that he shoul d have been given a two-level reduction in his offense level under th e "safety va lve" 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 de fendant does not have more than one crimina l his torypoint, as determined under the sentencin g guidelines; (2) The defendant did not use violence or c redible threats of violenc e or possess a firearm or other dangerous weapo n (o r entice another participant to do so) in connectio n with the offense;

## -8- (3) The of fense did not result in death or serious bodil y injury to any person; (4) The def endant was not an organizer, leader, manager, o r supervisor o f others in the offense, as determined under the se ntencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C

. § 848; and (5) Not la ter than the time of the sentencing hearing, th e defendant has truthfully provided to the Government al l information and evidence the defendant has concerning the offense or o ffenses that were part of the same course of conduct or of a common scheme or plan. . . .

It is und isputed that defendant meets requirements (1) through (4). At the sentencing hearing, the government took the position that he did no t meet requirement (5). In the opinion of governm ent counsel, defendant had not truthfully provided all information and evid ence he had concerning the offenses that were part of the same course of conduct or of a common schem e 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 no t admitted the additional drug quantities that have been previously discusse d in thi s opinion. Accordingly, government counsel, who believed tha t def endant was not being truthful, stated to the Court that he was no t eligible for "safety valve" treatment, and the Court agreed.
This argument is a replay, in differ ent form, of the point discussed above in part II of this opinion. Whether defendant truthfully denie d inv olvement with more than 6.84 grams is a question of fact. Th e government cannot by its mere ipse dixit establi sh 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 hav e seen, there was no such evidence, nor was there such a stipulation. On th e

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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, a nd the cause remanded for further proceedings. The conviction, as established by defendant's plea of guilty, of course stands. The only question to b e determined on remand is the proper sentence, which will depend on th e amount of drugs attributable to the defendant. Either side will be free to introdu ce evidence on this issue, and the government will bear th e 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.