UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40976 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRAULIO RUEDA FONTS,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas
September 6, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:
Braulio Rueda Fonts (“Fonts”) pleaded guilty to the delivery
of crack cocaine and was sentenced to fifty-seven months, followed
by three years of supervised release. Fonts appeals, claiming that
the district court erred in refusing to make a downward departure
from the sentencing guidelines based on the different treatment
relating to crack cocaine and powder cocaine offenses and the
disparate impact the sentencing guidelines have on minorities.
Finding no error by the district court in refusing Fonts’ downward departure, we affirm.
BACKGROUND
Braulio Rueda Fonts plead guilty to the delivery of 4.7 grams
of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 18 U.S.C. § 2 on August 21, 1995 pursuant to a
written plea agreement. However, by agreement with the Government,
Fonts’ sentencing date was deferred until after November 1, 1995,
pending resolution of the Sentencing Commission’s amendments that
were being proposed as to crack cocaine offenses. Prior to his
sentencing, but before November 1, 1995, Fonts filed a motion for
downward departure pursuant to 18 U.S.C. § 3553(b) and United
States Sentencing Guideline §5K2.0, contending that the Sentencing
Commission failed to consider the sentencing disparity between
offenses involving powder cocaine and crack cocaine and the
discriminatory effect it has on minorities when the guidelines were
established. Specifically, Fonts asserts that because of the 100:1
quantity ratio between cocaine powder and crack cocaine, minorities
are predominately being sentenced for crack cocaine offenses and
thus have received much higher sentences compared to Caucasian
offenders who are usually sentenced for powder cocaine offenses.
The underlying basis for Fonts’ argument is that powder cocaine and
crack cocaine are substantially similar substances and the offenses
involving these two drugs involve substantially similar conduct,
yet crack cocaine results in disproportionate consequences on
minorities because they are sentenced more often for crack
offenses. Therefore, Fonts contends that this disparate impact on
2 minorities constituted a mitigating circumstance and, thus, the
district court could depart downward from the recommended
sentencing guideline for his crack cocaine offense.
Subsequently, at Fonts’ sentencing, the district court denied
Fonts’ motion for downward departure stating that in fact the
Sentencing Commission had studied this disparity, but that it was
rejected by Congress. Moreover, the district court noted that this
circuit’s prior decisions precluded Fonts’ argument regarding the
sentencing disparity on minorities between crack cocaine and powder
cocaine as grounds for departure. The district court sentenced
Fonts to 57 months of imprisonment, followed by three years of
supervised release. Fonts appeals the district court’s refusal to
make a downward departure.
DISCUSSION
This court will not review a district court’s refusal to
depart from the sentencing guidelines unless a district court’s
refusal is a violation of the law. United States v. Guajardo, 950
F.2d 203 (5th Cir. 1991), cert. denied, 503 U.S. 1009, 112 S. Ct.
1773, 118 L. Ed. 2d 432 (1992). A violation of law occurs if the
district court refuses to depart under the mistaken assumption that
it does not have the authority to do so. United States v.
Burleson, 22 F.3d 93 (5th Cir.), cert. denied, U.S. , 115 S.
Ct. 283, 130 L. Ed. 2d 199 (1994). In reviewing a sentence, the
district court’s factual findings are reviewed for clear error, and
its legal conclusions are reviewed de novo. United States v.
Soliman, 954 F.2d 1012 (5th Cir. 1992).
3 Fonts contends that the district court erred in refusing his
request to downwardly depart from the sentencing guidelines because
the district court erroneously believed that it did not have the
authority to depart from the sentencing guidelines. Fonts asserts
that prior case law which refused to recognize the sentencing
disparity between crack cocaine and powder cocaine as a grounds for
departure did not consider the Sentencing Commission’s findings
that crack cocaine and powder cocaine were substantially the same
drug, and that the criminal conduct involving crack cocaine and
powder cocaine were the same. Further, Fonts contends that the
district court’s specific findings and the Sentencing Commission’s
findings distinguish his case from prior appellate decisions and
that a downward departure to avoid sentencing disparities between
defendants found guilty of similar conduct is within the district
court’s discretionary power pursuant to 18 U.S.C. 3553(b) and
U.S.S.G. §5K2.0.
Therefore, the sole question before the Court is whether the
district court had the authority to downwardly depart from the
sentencing guidelines based on Fonts’ disparate impact argument.
For the following reasons, we conclude the district court did not.
In May 1995, the Sentencing Commission proposed amendments to
the sentencing guidelines that would eliminate the penalty
differential between crack cocaine and powder cocaine, i.e.,
proposing a 1:1 ratio between crack cocaine and powder cocaine, and
specifically suggesting that Congress drop the 100:1 ratio from its
mandatory minimums. See United States Sentencing Commission,
4 Amendments to the Sentencing Guidelines, 60 Fed. Reg. 25074, 25075-
76 (1995). Absent action by the Congress, these proposed
amendments would have become effective on November 1, 1995.
However, Congress rejected the Sentencing Commission’s proposed 1:1
ratio on October 30, 1995, and refused to change the disparity
between crack cocaine and powder cocaine offenses.1 See Pub. L.
104-38, 109 Stat. 334, § 1. Congress’ actions cannot be ignored.
We note that other circuits have considered whether a district
court can contemplate a downward departure based on the sentencing
disparity between crack cocaine and powder cocaine offenses on the
basis of the Sentencing Commission’s findings regarding the
similarity of crack cocaine and powder cocaine and the Commission’s
recommendation that crack cocaine and powder cocaine offenses be
sentenced similarly. However, these circuits have rejected the
notion that a district court may override the express intention of
Congress regarding penalties for crack cocaine and powder cocaine
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40976 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRAULIO RUEDA FONTS,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas
September 6, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:
Braulio Rueda Fonts (“Fonts”) pleaded guilty to the delivery
of crack cocaine and was sentenced to fifty-seven months, followed
by three years of supervised release. Fonts appeals, claiming that
the district court erred in refusing to make a downward departure
from the sentencing guidelines based on the different treatment
relating to crack cocaine and powder cocaine offenses and the
disparate impact the sentencing guidelines have on minorities.
Finding no error by the district court in refusing Fonts’ downward departure, we affirm.
BACKGROUND
Braulio Rueda Fonts plead guilty to the delivery of 4.7 grams
of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 18 U.S.C. § 2 on August 21, 1995 pursuant to a
written plea agreement. However, by agreement with the Government,
Fonts’ sentencing date was deferred until after November 1, 1995,
pending resolution of the Sentencing Commission’s amendments that
were being proposed as to crack cocaine offenses. Prior to his
sentencing, but before November 1, 1995, Fonts filed a motion for
downward departure pursuant to 18 U.S.C. § 3553(b) and United
States Sentencing Guideline §5K2.0, contending that the Sentencing
Commission failed to consider the sentencing disparity between
offenses involving powder cocaine and crack cocaine and the
discriminatory effect it has on minorities when the guidelines were
established. Specifically, Fonts asserts that because of the 100:1
quantity ratio between cocaine powder and crack cocaine, minorities
are predominately being sentenced for crack cocaine offenses and
thus have received much higher sentences compared to Caucasian
offenders who are usually sentenced for powder cocaine offenses.
The underlying basis for Fonts’ argument is that powder cocaine and
crack cocaine are substantially similar substances and the offenses
involving these two drugs involve substantially similar conduct,
yet crack cocaine results in disproportionate consequences on
minorities because they are sentenced more often for crack
offenses. Therefore, Fonts contends that this disparate impact on
2 minorities constituted a mitigating circumstance and, thus, the
district court could depart downward from the recommended
sentencing guideline for his crack cocaine offense.
Subsequently, at Fonts’ sentencing, the district court denied
Fonts’ motion for downward departure stating that in fact the
Sentencing Commission had studied this disparity, but that it was
rejected by Congress. Moreover, the district court noted that this
circuit’s prior decisions precluded Fonts’ argument regarding the
sentencing disparity on minorities between crack cocaine and powder
cocaine as grounds for departure. The district court sentenced
Fonts to 57 months of imprisonment, followed by three years of
supervised release. Fonts appeals the district court’s refusal to
make a downward departure.
DISCUSSION
This court will not review a district court’s refusal to
depart from the sentencing guidelines unless a district court’s
refusal is a violation of the law. United States v. Guajardo, 950
F.2d 203 (5th Cir. 1991), cert. denied, 503 U.S. 1009, 112 S. Ct.
1773, 118 L. Ed. 2d 432 (1992). A violation of law occurs if the
district court refuses to depart under the mistaken assumption that
it does not have the authority to do so. United States v.
Burleson, 22 F.3d 93 (5th Cir.), cert. denied, U.S. , 115 S.
Ct. 283, 130 L. Ed. 2d 199 (1994). In reviewing a sentence, the
district court’s factual findings are reviewed for clear error, and
its legal conclusions are reviewed de novo. United States v.
Soliman, 954 F.2d 1012 (5th Cir. 1992).
3 Fonts contends that the district court erred in refusing his
request to downwardly depart from the sentencing guidelines because
the district court erroneously believed that it did not have the
authority to depart from the sentencing guidelines. Fonts asserts
that prior case law which refused to recognize the sentencing
disparity between crack cocaine and powder cocaine as a grounds for
departure did not consider the Sentencing Commission’s findings
that crack cocaine and powder cocaine were substantially the same
drug, and that the criminal conduct involving crack cocaine and
powder cocaine were the same. Further, Fonts contends that the
district court’s specific findings and the Sentencing Commission’s
findings distinguish his case from prior appellate decisions and
that a downward departure to avoid sentencing disparities between
defendants found guilty of similar conduct is within the district
court’s discretionary power pursuant to 18 U.S.C. 3553(b) and
U.S.S.G. §5K2.0.
Therefore, the sole question before the Court is whether the
district court had the authority to downwardly depart from the
sentencing guidelines based on Fonts’ disparate impact argument.
For the following reasons, we conclude the district court did not.
In May 1995, the Sentencing Commission proposed amendments to
the sentencing guidelines that would eliminate the penalty
differential between crack cocaine and powder cocaine, i.e.,
proposing a 1:1 ratio between crack cocaine and powder cocaine, and
specifically suggesting that Congress drop the 100:1 ratio from its
mandatory minimums. See United States Sentencing Commission,
4 Amendments to the Sentencing Guidelines, 60 Fed. Reg. 25074, 25075-
76 (1995). Absent action by the Congress, these proposed
amendments would have become effective on November 1, 1995.
However, Congress rejected the Sentencing Commission’s proposed 1:1
ratio on October 30, 1995, and refused to change the disparity
between crack cocaine and powder cocaine offenses.1 See Pub. L.
104-38, 109 Stat. 334, § 1. Congress’ actions cannot be ignored.
We note that other circuits have considered whether a district
court can contemplate a downward departure based on the sentencing
disparity between crack cocaine and powder cocaine offenses on the
basis of the Sentencing Commission’s findings regarding the
similarity of crack cocaine and powder cocaine and the Commission’s
recommendation that crack cocaine and powder cocaine offenses be
sentenced similarly. However, these circuits have rejected the
notion that a district court may override the express intention of
Congress regarding penalties for crack cocaine and powder cocaine
under either 18 U.S.C. 3553(b) or § 5K2.0. See United States v.
Sanchez, 81 F.3d 9 (1st Cir. 1996), petition for cert. filed, (U.S.
July 8, 1996)(No. 96-5082); United States v. Ambers, 85 F.3d 173,
177 (4th Cir. 1996); United States v. Anderson, 82 F.3d 436, 438-42
(D.C. Cir. 1996); United States v. Booker, 73 F.3d 706, 710 (7th
Cir. 1996); United States v. Higgs, 72 F.3d 69, 70 (8th Cir. 1995).
1 In rejecting the Sentencing Commission’s proposed amendments, Congress directed the Commission to submit to it recommendations with the guidance that “the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine....” Pub. L. 104-38, 109 Stat. 334, §2(a)(1)(A).
5 We join these circuits in refusing to allow a district court
to downwardly depart under these circumstances. “[I]t is not the
province of this Court to second guess Congress’ chosen penalty.
That is a discretionary legislative judgment for Congress and the
Sentencing Commission to make.” United States v. Cherry, 50 F.3d
338, 344 (5th Cir. 1995). Thus, granting a downward departure
based on the disparity between the penalties for crack cocaine and
powder cocaine offenses would be second guessing Congress’
authority. This Court, as well as others, has declined to question
the penalties for crack cocaine chosen by Congress, and we refuse
to do so in this instance. Therefore, because this Court will not
override or second-guess Congress’ actions, Fonts’ disparate impact
argument must fail. Moreover, Fonts’ sentencing occurred on
November 15, 1995, some two weeks after Congress rejected the
Sentencing Commission’s proposed amendments. This was noted by the
district court, however Fonts still contended that the district
court should make the downward departure. A defendant’s sentence
is normally based on the Sentencing Guidelines “that are in effect
on the date that the defendant is sentenced.” 18 U.S.C. §
3553(a)(4); U.S.S.G. § 1B1.11(a). Thus, the sentencing court must
apply the version of the guidelines which are in effect at the time
of the sentencing unless application of that version would violate
the Ex Post Facto Clause of the Constitution. United States v.
Ashburn, 20 F.3d 1336 (5th Cir. 1994), cert. denied, U.S. ,
115 S. Ct. 1969, 131 L. Ed. 2d 858 (1995).
Furthermore, this Court has previously determined that the
6 sentencing guidelines that impose harsher sentences on those
involving crack cocaine offenses compared to those involving powder
cocaine offenses, did not violate equal protection rights of
minorities, despite the contention that statistics indicated that
minorities are convicted more often of crack cocaine offenses
whereas Caucasian are convicted more often for powder cocaine
offenses which exposes them to less sever sentences. See United
States v. McKinney, 53 F.3d 664 (5th Cir.), cert. denied, U.S.
, 116 S. Ct. 431, 133 L. Ed. 2d 346 (1995); United States v.
Cherry, 50 F.3d 338 (5th Cir. 1995); United States v. Fischer, 22
F.3d 574 (5th Cir.), cert. denied, U.S. , 115 S. Ct. 529,
130 L. Ed. 2d 433 (1994). Therefore, the district court did not
err by refusing to grant Fonts’ downward departure and by
sentencing him according to the sentencing guidelines.
For the foregoing reasons, we AFFIRM the district court’s
denial of Fonts’ Motion for downward departure and the sentence.
AFFIRM