Opinion
No. 96-3419
SUBMITTED MARCH 21, 1997
DECIDED JUNE 10, 1997
Appeal from the United States District Court for the Central District of Illinois, Peoria Division.
No. 93 CR 10044.
Joe B. McDade, Judge.
Muhammed Abdul pleaded guilty to possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and using or carrying a firearm related to drug trafficking in violation of 18 U.S.C. § 924(c). Abdul appealed the district court's denial of his motion to withdraw his pleas. This court affirmed the denial of the motion to withdraw the guilty plea as to the drug possession charge; however, we vacated the judgment of conviction as to the armed drug trafficking charge pursuant to Bailey v. United States, 116 S. Ct. 501 (1995). See United States v. Abdul, 75 F.3d 327 (7th Cir. 1996), cert. denied, 116 S. Ct. 2569 (1996). We remanded the case for resentencing.
On remand, the district court sentenced Abdul to 262 months' imprisonment for possession with the intent to distribute cocaine base. At his resentencing, Abdul objected for the first time to being held accountable for 538.2 grams of cocaine base instead of the equivalent amount of cocaine. He argued that because the government did not prove the cocaine in question was prepared with sodium bicarbonate, the substance should be treated as cocaine instead of cocaine base in calculating his sentence.
The 262-month sentence results from the district court's application of the United States Sentencing Commission, Guidelines Manuel, sec. 2D1.1(b)(1). That section directs sentencing courts to impose a two-level increase to the base offense level if a defendant possessed a firearm in connection with the drug offense. While he objected to the application of sec. 2D1.1(b)(1) during his resentencing, Abdul abandons that issue on appeal.
Under sec. 2D1.1(c), a given quantity of "cocaine base" (crack) results in the same base offense level for sentencing as 100 times that quantity of "cocaine."
The district court rejected Abdul's argument on several grounds. First, it held that Abdul's bare denial of the presentence report was not sufficient to burden the government with proving the report's conclusion that the substance was "crack" cocaine. Second, the district court determined that Abdul's failure to object to this factual conclusion during his original sentencing precluded the court from considering the issue based on the law of the case. Alternatively, the court found that the government had proven that the substance at issue was cocaine base within the meaning of the Guidelines even though the government had not proven that sodium bicarbonate was used to produce the substance.
Discussion
The ultimate factual conclusion that the substance at issue was crack cocaine rests on the district court's interpretation of the Guidelines that cocaine need not be processed with sodium bicarbonate to be crack under sec. 2D1.1. We review the interpretation of a sentencing guideline de novo. United States v. Townsend, 73 F.3d 747, 754 (7th Cir. 1996). Abdul's entire argument stands on the notion that unless the resultant drug was manufactured with sodium bicarbonate it is not crack cocaine under sec. 2D1.1(c).
Crack is one of several forms of cocaine base. See United States v. Booker, 70 F.3d 488, 490-91 (7th Cir. 1995), cert. denied, 116 S. Ct. 1334 (1996). Prior to 1993, circuit courts were divided over whether "cocaine base" under sec. 2D1.1 included only "crack," or whether it also broadly encompassed all other substances the scientific community generally considered to be cocaine base. Compare United States v. Wheeler, 972 F.2d 927 (8th Cir. 1992) (holding that substance need not contain a hydroxyl radical to be cocaine base under sec. 2D1.1); United States v. Lopez-Gil, 965 F.2d 1124 (1st Cir. 1992) (holding that although substance was cocaine base in the scientific sense, it was not crack); and United States v. Shaw, 936 F.2d 412 (9th Cir. 1991) (eschewing a chemical definition of cocaine base and defining it in practical terms as cocaine that is very pure and smokable); with United States v. Brown, 859 F.2d 974, 976 (D.C. Cir. 1988) ("The fact that 'cocaine base' may have various interpretations on the street does not make it incapable of objective definition by means of chemical analysis."); United States v. Rodriguez, 980 F.2d 1375, 1377 (11th Cir. 1992) (per curiam) (holding substance that was not in "rock or crack form" nevertheless triggered sec. 2D1.1 enhancement because the substance fit the scientific meaning of cocaine base); and United States v. Jackson, 968 F.2d 158 (2d Cir. 1992) (holding that soft, sticky, oily substance that was less than thirty percent cocaine was cocaine base within the meaning of sec. 2D1.1 even though the expert doubted it could have been used as crack).
To clarify that a sec. 2D1.1 enhancement should apply only to the crack form of cocaine base, the Sentencing Commission proposed amending sec. 2D1.1(c). Congress adopted the amendment, which became effective in 1993. The guideline now reads as follows:
"Cocaine base," for the purposes of this guideline, means "crack." "Crack" is 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. sec. 2D1.1(c), note (D). The Commission expressly indicated that the purpose of the amendment was to address the conflict among the circuits, and explained that "forms of cocaine base other than crack (e.g., coca paste . . .) will be treated as cocaine." U.S.S.G. App. C., amend. 487.
Since the amendment, the Third Circuit in United States v. James considered a district court's conclusion that because a substance was cocaine base, it also was crack under sec. 2D1.1. 78 F.3d 851 (3d Cir.), cert. denied, 117 S. Ct. 128, 136 (1996). The James court rejected the district court's inclusive definition of "cocaine base." It held that it was error to construe the substance as cocaine base under sec. 2D1.1 because the government did not prove that the cocaine base was crack. While the court discussed the testimony of an expert who had outlined various methods of preparing cocaine base, it did not hold that cocaine base must be processed using sodium bicarbonate to constitute crack cocaine.
Although we affirm Abdul's sentence, we do so on grounds other than those relied on by the district court. Neither side, nor the district court, has discussed Abdul's admission during his plea hearing. The district judge began discussing the charges by explaining that Abdul had been indicted for possessing with the intent to distribute "more than 50 grams of a substance containing cocaine base, or a controlled substance which is also commonly called crack." Plea Trans. at 6 (emphasis added). When the judge immediately asked Abdul if that was his understanding of the charge, Abdul replied, "Yes, sir." Id. Abdul thus admitted the type of drug to the court, under oath, during the plea colloquy. We find that Abdul's admission and his guilty plea support the district court's determination that the drug at issue was crack.
This case is distinguishable from United States v. Isirov, 986 F.2d 183 (7th Cir. 1993), where the court acknowledged that a stipulation of facts in a plea agreement may be revocable to avoid a manifest injustice. Here, we address Abdul's guilty plea to a charge of possession with intent to distribute "cocaine base," which the court expressly stated to Abdul as being "a controlled substance which is also commonly called crack." A voluntary and knowing plea of guilty to this charge waives all but jurisdictional challenges. United States v. Nash, 29 F.3d 1195, 1201 (7th Cir. 1994) ("A defendant's plea of guilty admits, in legal effect, the facts charged and waives all non-jurisdictional defenses . . . .").
JUDGMENT AFFIRMED.