PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 94-2101 

D. C. Docket No. 93-157-CR-T-99C

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

ROY SLOAN,

 Defendant-Appellant.

 

Appeal from the United States District Court

for the Middle District of Florida

 

---------------------------------------------------------------

 

Nos. 94-9138, 94-9159

94-9161 and 94-9263

 

D. C. Docket Nos. 1:93-CR-483-2, 1:93-CR-483-5,

1:93-CR-483-4, 1:93-CR-483-3

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

HEIN VAN PHUNG, a.k.a. Hieu, HOANG NGO,

TAI NGUYEN and BAO VUONG,

 Defendants-Appellants.
 1

 Tai Nguyen, Huong Ngo and Bao Vuong also appeal the

district court’s deportation order. Those claims are precluded

by the ruling in United States v. Oboh, 92 F.3d 1082 (11th Cir.

1996) (en banc).

2

 

Appeals from the United States District Court

for the Northern District of Georgia

 

(October 7, 1996)

Before KRAVITCH and COX, Circuit Judges, and CLARK, Senior

Circuit Judge.

KRAVITCH, Circuit Judge:

In these consolidated appeals, appellants challenge the

sentences imposed after their pleas of guilty to violations of 21

U.S.C. § 841(a).1

 Appellants argue that the relevant statute and

Sentencing Guidelines (“guidelines”) are ambiguous because they

use a 100:1 weight ratio for “cocaine base” and “cocaine”

offenses and thereby punish cocaine base offenses more severely

despite the fact that cocaine and cocaine base are chemically

synonymous. Appellants contend the rule of lenity should apply

and they should receive the less severe penalties. We disagree

and affirm the sentences imposed by the district court.

I.

Appellant Roy Sloan pleaded guilty, in the Middle District

of Florida, to two counts of possessing cocaine base with intent

to distribute in violation of 21 U.S.C. § 841(a). At his change

of plea hearing, Sloan acknowledged he was pleading guilty to a

charge of distributing crack cocaine, and he confirmed the
 2

 Phung’s plea colloquy was recorded stenographically, but

apparently not transcribed; thus, it is not part of the record.

 3 The PSRs also indicated that, at a co-defendant’s trial,

Phung testified he had discussed the process for converting

cocaine hydrochloride into crack cocaine with the co-defendant.

3

accuracy of the government’s factual recitation which indicated

he had dealt in crack cocaine. His Pre-Sentence Report (“PSR”)

described specific instances in which Sloan distributed crack

cocaine and it proposed an imprisonment range under the

guidelines using the offense level for cocaine base. Sloan

affirmatively accepted all the findings and guideline

applications in his PSR and received 70 months in prison.

Appellants Hein Van Phung, Ngo and Vuong each pleaded

guilty, in the Northern District of Georgia, to, inter alia,

possession of cocaine base with intent to distribute. At their

change of plea hearings, Ngo and Vuong each acknowledged that

they, acting in concert with Phung, had sold crack cocaine.2

Phung’s, Ngo’s and Vuong’s PSRs also documented that each had

distributed crack cocaine.3 At sentencing, a government expert

testified that among the substances seized in connection with the

offenses of conviction was crack cocaine, cocaine base in a rocklike form. Phung, Ngo and Vuong did not dispute that they had

distributed this substance, but instead argued that there was no

scientific definition of crack cocaine and that the sentencing

scheme was too ambiguous to warrant enforcement of the

heightened, cocaine base penalties. The district court denied

the objections and sentenced Phung, Ngo and Vuong to prison terms
4

of 65, 78 and 60 months, respectively.

II.

The statute under which appellants were sentenced provides

in relevant part that:

(1)(A) In the case of a [drug offense] involving -. . .

(ii) 5 kilograms or more of a mixture or substance

containing a detectable amount of -- . . .

(II) cocaine, its salts, optical and

geometric isomers, and salts of isomers; . . .

(iii) 50 grams or more of a mixture or substance

described in clause (ii) which contains cocaine base; 

. . .

such person shall be sentenced to a term of

imprisonment which may not be less than 10 years or

more than life . . . .

 (B) In the case of a [drug offense] involving -. . .

(ii) 500 grams or more of a mixture or substance

containing a detectable amount of -- . . .

(II) cocaine, its salts, optical and

geometric isomers, and salts of isomers; . . .

(iii) 5 grams or more of a mixture or substance

described in clause (ii) which contains cocaine base;

. . .

such person shall be sentenced to a term of

imprisonment which may not be less than 5 years and not

more than 40 years . . . .

21 U.S.C. § 841(b) (emphasis added). The guidelines also provide

for a 100:1 weight ratio which effectively punishes “cocaine

base” offenses more severely than “cocaine” offenses. See

U.S.S.G. § 2D1.1(c). Neither the statute, nor the guidelines in

effect when these crimes occurred, define “cocaine” or “cocaine
 4

 The guidelines were amended, effective November 1, 1993,

to define “cocaine base” as “crack cocaine.” U.S.S.G. §

2D1.1(c), Note D (defining crack cocaine as “a form of cocaine

base, usually prepared by processing cocaine hydrochloride and

sodium bicarbonate, and usually appearing in a lumpy, rocklike

form”). This new definition of “cocaine base” also applies to

the mandatory minimum, drug penalty statutes. See United States

v. Munoz-Realpe, 21 F.3d 375, 377-78 (11th Cir. 1994). This

amendment came into effect after these crimes occurred, but

before appellants were sentenced. While the guidelines in effect

at the time of sentencing generally apply, the Ex Post Facto

Clause, U.S. Const., Art. I, Sect. 9, prohibits an amendment from

being applied in a manner which subjects a person to a greater

statutory or guidelines punishment than was authorized prior to

the amendment. See United States v. Howard, 923 F.2d 1500, 1504

n. 5 (11th Cir. 1991). See also United States v. Camacho, 40

F.3d 349, 353 (11th Cir. 1994) (ruling that the amendment’s new

definition of cocaine base does not apply retroactively). In his

special concurrence, Judge Cox relies upon a recent Second

Circuit case to conclude that the guidelines' distinction between

cocaine and cocaine base was clear prior to the 1993 amendment,

and thus, that the amendment does not subject appellants to

greater punishment. Although the Second Circuit's view certainly

constitutes persuasive authority, we do not find it a sufficient

basis for resolving this difficult issue, and therefore conduct

our own analysis in Section III. Citations to § 2D1.1 refer to

the pre-1993 version of the guidelines unless specifically noted.

 5

 Under the rule of lenity, a court “will not interpret a

federal criminal statute so as to increase the penalty that it

places on an individual when such an interpretation can be based

on no more than a guess as to what Congress intended.” Ladner v.

United States, 358 U.S. 169, 178 (1958).

 6 The government contends Sloan waived appeal of this issue

by failing to raise it in the district court. Sloan’s challenge

arguably is subject to plain error review. See United States v.

5

base.”4

Appellants contend this scheme is ambiguous because

“cocaine” and “cocaine base” are chemically synonymous. As a

result, appellants argue, both the lesser and greater penalty

provisions facially apply to all cocaine-related offenses, and

pursuant to the rule of lenity,5 the district court erred when it

failed to give them the less severe punishment.6
Antonietti, 86 F.3d 206 (11th Cir. 1996) (applying plain error

review to sentencing issues). Since we find no error, plain or

otherwise, we need not address the government’s contention. The

government also argues that Phung’s and Ngo’s claims are moot

because: (1) they appealed only the stiffer statutory penalties,

not the heightened guidelines provisions; and (2) the bottom of

their guidelines exceed the statutory minimum sentences they

attack. The court rejects this narrow view of the appeals and

finds Phung and Ngo are challenging the entire sentencing scheme.

6

In support of these claims, appellants rely primarily upon

the transcript of the sentencing hearing held in United States v.

Davis, 864 F. Supp. 1303 (N.D. Ga. 1994). In Davis, government,

defense and court-appointed experts testified about the chemical

composition of cocaine-related substances. In Phung’s, Ngo’s and

Vuong’s cases, the district court, by consent of the parties,

adopted the Davis transcript and heard further expert testimony

from a Drug Enforcement Administration chemist.

III.

The record establishes the following facts: the chemical

compound, C17H21NO4, occurs naturally in the coca leaf. It is a

“base” because it reacts with acids to produce salts, and thus,

is referred to chemically as “cocaine” or “cocaine base.” This

compound is usually processed for importation into the United

States by dissolving coca paste derived from the coca leaf in

hydrochloric acid, Hcl, and water, H2O, to create a salt, cocaine

hydrochloride, C17H22ClNO4, popularly known as powder cocaine. 

This salt is water soluble and is ingested, injected or snorted,

but not smoked because it decomposes at the same temperature at

which it evaporates. Cocaine hydrochloride can be converted back

to a base by several methods. The most common process requires:
7

(1) dissolving cocaine hydrochloride in baking soda and water;

and (2) boiling the mixture into solid form. When dried, the

resulting substance, commonly called crack cocaine, is smoked and

has the same chemical formula as the naturally occurring base.

The compound, C17H21NO4, in nature or upon conversion from

cocaine hydrochloride, is a base, and its distinct physical

forms, such as coca paste and crack cocaine, are chemically

indistinguishable. Further, substances, such as cocaine

hydrochloride, are ultimately derived from the naturally

occurring compound. As a result, the references to “cocaine” and

“cocaine base” in different parts of § 841(b) and § 2D1.1 create,

as courts have noted, some facial ambiguity. See, e.g., United

States v. Booker, 70 F.3d 488, 492 (7th Cir. 1995).

This conclusion, however, does not mandate application of

the rule of lenity. “The rule comes into operation at the end of

the process of construing what Congress has expressed, not at the

beginning as an overriding consideration of being lenient to

wrongdoers.” Callanan v. United States, 364 U.S. 587, 596

(1961). The court must consider not just the language of the

sentencing regime, but also its “structure, legislative history,

and motivating policies . . . .” Bifulco v. United States, 447

U.S. 381, 387 (1980).

The structure of the statutory penalty scheme at issue here

counsels against application of the rule of lenity. Prior to

1986, the drug distribution penalty statute included only one

category covering all cocaine-related substances. See 21 U.S.C.
 7

 Appellants assert that cocaine hydrochloride, like all

cocaine salts, “contains” cocaine base as its underlying building

block. They further argue that this fact means that clauses ii

and iii are fully coextensive, and therefore, that the statute is

hopelessly ambiguous. This argument fails because it is premised

upon an unreasonable construction of the word, “contains.” 

Cocaine salts have a different chemical makeup than cocaine base,

and thus, while they contain all of the elements which make up

cocaine base, they no longer contain cocaine base.

8

§ 841(b) (as amended 1984). In 1986, amid growing concern over

the abuse of crack cocaine, Congress amended the law. Although

crack cocaine is only one form of cocaine base, this court has

concluded that Congress “chose[] to address the ‘crack problem’

by enhancing the penalties for the more broad class of cocaine

bases.” United States v. Rodriguez, 980 F.2d 1375, 1378 (11th

Cir. 1992). To make this change, Congress created separate tiers

of punishments within § 841(b) for: (1) “cocaine, its salts,

optical and geometric isomers, and salts of isomers” (“clause

ii”); and (2) substances “described in clause (ii) which

contain[] cocaine base” (“clause iii”). Congress’ inclusion of

the phrase, “described in clause ii,” within clause iii indicates

that Congress considered clause ii a re-enactment of the

preceding catch-all provision covering all cocaine-related

substances and that by enacting clause iii, Congress intended to

single out a subset of cocaine-related substances, all forms of

cocaine base, for harsher treatment.7

The legislative history and motivating policies underlying §

841(b) also support this construction of the statute. Although

courts have construed aspects of § 841(b) differently, this court

and all other circuit courts who have considered it, have
9

concluded that, at a minimum, when Congress amended the statute

in 1986 it intended to increase penalties for crack cocaine

offenses. See, e.g., Booker, 70 F.3d at 492 (“Congress was

targeting crack cocaine when it passed the stiffer sentencing

provisions for ‘cocaine base.’”); United States v. Fisher, 58

F.3d 96, 99 (4th Cir. 1995) (“This legislative history

demonstrates that Congress intended, with the enactment of clause

(iii), to penalize more severely violations involving crack

cocaine.”); Rodriguez, 980 F.2d at 1378 (noting the legislative

history “focused on the malevolent nature of crack cocaine”).

Congress’ intent to impose more severe sanctions upon

offenses involving cocaine base, and crack cocaine in particular,

must also guide this court’s construction of the guidelines’

distinction between “cocaine” and “cocaine base” offenses. See

Munoz-Realpe, 21 F.3d at 378 (ruling that mandatory minimum, drug

penalty statutes and analogous guidelines must be treated as a

unified whole “since both provisions seek to address the same

problem”). As a result, the higher penalty provisions prescribed

for cocaine base must be applied to persons, such as appellants,

who distribute the rock-like form of cocaine base, while the

lesser cocaine penalties must be interpreted as applying to

cocaine-related substances, such as the salts, which are

chemically distinct from the base compound. See United States v.

Montoya, 87 F.3d 621, 623 (2d Cir. 1996) (ruling that even prior

to the 1993 amendment there was “no doubt that the Guidelines’

term cocaine base included at least crack” (emphasis in
 8

 Appellants’ claim that crack cocaine lacks a scientific

definition does not affect these conclusions. Crack cocaine can

be chemically identified as a form of cocaine base, and it is

sufficiently physically distinguishable to allow persons, such as

appellants, to confirm that they have distributed it. See id. at

368 (“The street name ‘crack’ is not ambiguous, because crack has

a common and ordinary meaning that is understood by [appellant

concededly], by others in the drug trade, and by citizens in the

communities that are plagued by the drug.”).

10

original)). Congress’ recent rejection of the proposed guideline

amendment which would have ended the 100:1 weight ratio further

confirms its intent that crack cocaine offenses should receive

harsher treatment under the guidelines, as well as the drug

distribution statute. See United States v. Canales, 91 F.3d 363,

369 (2d Cir. 1996) (observing that “Congress instructed the

[Sentencing] Commission that ‘the sentence imposed for

trafficking in a quantity of crack cocaine should generally

exceed the sentence imposed for trafficking in a like amount of

powder cocaine’” (internal citations omitted)). “While

Congress’s later view as to the meaning of pre-existing law does

not seal the outcome when addressing a question of statutory

interpretation, it should not be discounted when relevant.” 

Sorrell v. Commissioner of Internal Revenue, 882 F.2d 484, 489

(11th Cir. 1989). See also Johnson v. Commissioner of Internal

Revenue, 794 F.2d 1157, 1163 (6th Cir. 1986) (“Although the views

of a later Congress are not controlling as to the meaning of preexisting law, they carry some weight and may not be ignored when

they are clearly relevant.”).8

No doubt Congress could have enacted a statute which

expressed its intentions more precisely, but that fact does not
 9

 In his special concurrence, Judge Cox proposes that we not

reach this issue “because it was not presented to the district

court.” He quotes a portion of the motion filed in district

court by the Northern District of Georgia appellants in which

they articulate only a race-based, equal protection challenge. 

Elsewhere in that motion, however, these appellants also

explicitly requested that the district court adopt the reasoning

of the Davis court. In Davis, the district court concluded there

was no rational basis for treating crack cocaine and other forms

of cocaine base differently. See Davis, 864 F. Supp. at 1309 &

n. 25. Thus, although appellants could have articulated this

precise claim more clearly before the district court, in my view

they preserved the issue for appeal. Because we must reach this

issue for some appellants and find no error of any sort, there is

no need to determine the form of review, if any, to which Sloan,

who admittedly failed to raise this claim, is entitled.

11

compel the conclusion that the statute Congress chose to enact is

so ambiguous that the rule of lenity applies. Appellants are

entitled to the benefit of the rule only if their actions in

distributing a rock-like form of cocaine base were arguably

subject to § 841(b)’s and §2D1.1(c)’s lower tier of penalties. 

The structure, legislative history and motivating policies behind

the sentencing scheme precludes such a conclusion.

IV.

Alternatively, appellants assert that the sentencing scheme

violates the equal protection prong of the Due Process Clause,

U.S. Const., amend. V. First, they contend it treats crack

cocaine and other forms of cocaine base disparately without a

rational basis.9

 This assertion is without merit. Although the

1993 amendment to the guidelines redefined “cocaine base” as only

“crack cocaine,” that amendment went into effect after these

crimes occurred. Thus, under the law applicable to this case,

crack cocaine is treated the same as other forms of cocaine base. 
12

See Rodriguez, 980 F.2d at 1378. Appellants next argue that the

sentencing regime’s distinction between cocaine base and cocaine

hydrochloride lacks a rational basis. This court repeatedly has

rejected this claim. See, e.g., United States v. Terry, 60 F.3d

1541, 1544 (11th Cir. 1995) (ruling that Congress singled out

cocaine base offenses for harsher treatment because of its

availability, cost and effects).

Accordingly, we AFFIRM the sentences imposed by the district

court.