PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-3576 FILED Non-Argument Calendar U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 09/10/98 D. C. Docket No. 5:97-CR-2-LAC THOMAS K. KAHN CLERK UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
MARLON D. HANNA, a.k.a. Pearl, Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Florida _________________________ (September 10, 1998)
Before TJOFLAT and EDMONDSON, Circuit Judges, and FAY, Senior Circuit Judge.
PER CURIAM:
Marlon Hanna pled guilty to one count of conspiring to possess with intent to distribute
cocaine base, better known as “crack cocaine,” in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(iii). In accordance with United States Sentencing Commission Guideline § 2D1.1(c)(1),
the district court sentenced Hanna to serve 330 months in prison. Hanna filed this appeal
challenging the constitutionality of his sentence.
Hanna raises two arguments against the constitutionality of his 330 month sentence. First,
he argues that his substantive due process rights were violated when the district court sentenced him
using the guideline applicable to crack cocaine because the resulting sentence was both excessive
and disproportionate to his crime. Second, Hanna argues that the application of the crack cocaine sentencing guideline denied him his right to equal protection because the consequence of that
guideline – 100 times longer sentences for crack cocaine offenses than for powder cocaine offenses
– falls disproportionately upon black offenders.
We have had occasion to hear and reject constitutional challenges to the crack cocaine
guideline in the past. See, e.g., United States v. Butler, 102 F.3d 1191, 1194-95 (11th Cir.), cert.
denied, 117 S. Ct. 1712 (1997); United States v. Sloan, 97 F.3d 1378, 1383-84 (11th Cir. 1996), cert.
denied, 117 S. Ct. 2459 (1997); United States v. Terry, 60 F.3d 1541, 1544-45 (11th Cir. 1995), cert.
denied, 516 U.S. 1060 (1996). In this circuit, only the court of appeals sitting en banc, an overriding
United States Supreme Court decision, or a change in the statutory law can overrule a previous panel
decision. See United States v. Woodard, 938 F.2d 1255, 1258 (11th Cir. 1991); Davis v. Estelle, 529
F.2d 437, 441 (5th Cir. 1976).
Due Process Argument
Hanna contends that we should revisit our decisions upholding the constitutionality of the
crack cocaine guideline in light of the Supreme Court’s decision in BMW of North America v. Gore,
517 U.S. 559 (1996). There, the Court reversed an award of punitive damages in a civil action
because the award, $4 million, was so excessive as to violate substantive due process. Hanna argues
that the Gore decision sheds new light on the nature of substantive due process and may have
applicability in his case. We, however, continue to be bound by our precedent as Gore’s holding
does not overrule (or even relate to) our decisions on the crack cocaine guideline.
Equal Protection Argument
Hanna argues we should revisit our precedent upholding the crack cocaine guideline because
new findings made by the Sentencing Commission and communicated to Congress reveal that no
rational basis supports the sentence differential between crack and powder cocaine offenses. In our
previous cases, we have held that imposing longer sentences on crack cocaine offenders is rationally
related to the legitimate purpose of distinguishing between distinguishable drugs. See Terry, 60
2 F.3d at 1544-45 (“Congress distinguished between the kinds of cocaine, not to discriminate against
people, but because crack cocaine is more dangerous, more highly addictive, more easily available,
and less expensive than powder cocaine.”). Hanna argues that the recent dialogue between Congress
and the Sentencing Commission on repealing the crack/powder disparity is evidence of the absence
of a rational basis for the disparity.1 Similar arguments have been rejected in several of our sister
circuit courts of appeal. See United States v. Washington, 127 F.3d 510 (6th Cir. 1997), cert.
denied, 118 S. Ct. 2348 (1998); United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 1087 (1997); United States v. Teague, 93 F.3d 81 (2d Cir. 1996), cert. denied, 117
S. Ct. 708 (1997); United States v. Carter, 91 F.3d 1196 (8th Cir. 1996); United States v. Jackson,
84 F.3d 1154 (9th Cir.), cert. denied, 117 S. Ct. 445 (1996).
The Sentencing Commission is required to review and revise guidelines previously
promulgated and to submit amendments to Congress before the first of May each year. 28 U.S.C.
§ 994(o), (p). These amendments become effective by operation of law unless Congress passes a
law specifically disapproving of the amendment. 28 U.S.C. § 994(p). In May 1995, the Sentencing
Commission promulgated a series of amendments to Congress including one that would have
eliminated altogether the sentencing disparity between crack and powder cocaine. After conducting
a study at the direction of Congress, see Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, § 280006, 108 Stat. 1796, 2097, the Commission voted 4-3 to remove any
difference between cocaine base and cocaine powder, concluding that “sufficient policy bases for
the current penalty differential do not exist.” Notice of Submission to Congress of Amendments to
the Sentencing Guidelines, 60 Fed. Reg. 25,074, 25,076 (amendments proposed on May 1, 1985).
1 Hanna also argues we should apply a “strict scrutiny” standard of review. We see no evidence in the dialogue between the Commission and Congress that Congress’s rejection of the Commission’s proposed amendment was motivated by racial animus. Accordingly, we review the crack cocaine sentencing guideline to determine whether it is rationally related to a legitimate governmental purpose. See United States v. Byse, 28 F.3d 1165, 1168 (11th Cir. 1994).
3 Specifically, the Commission determined that many of the harms associated with crack cocaine
(such as the correlation with violence, incidence of repeat offenders, etc.) were already captured by
other guideline sentencing enhancements. Id. The Commission further observed in its notice to
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-3576 FILED Non-Argument Calendar U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT 09/10/98 D. C. Docket No. 5:97-CR-2-LAC THOMAS K. KAHN CLERK UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
MARLON D. HANNA, a.k.a. Pearl, Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Florida _________________________ (September 10, 1998)
Before TJOFLAT and EDMONDSON, Circuit Judges, and FAY, Senior Circuit Judge.
PER CURIAM:
Marlon Hanna pled guilty to one count of conspiring to possess with intent to distribute
cocaine base, better known as “crack cocaine,” in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(iii). In accordance with United States Sentencing Commission Guideline § 2D1.1(c)(1),
the district court sentenced Hanna to serve 330 months in prison. Hanna filed this appeal
challenging the constitutionality of his sentence.
Hanna raises two arguments against the constitutionality of his 330 month sentence. First,
he argues that his substantive due process rights were violated when the district court sentenced him
using the guideline applicable to crack cocaine because the resulting sentence was both excessive
and disproportionate to his crime. Second, Hanna argues that the application of the crack cocaine sentencing guideline denied him his right to equal protection because the consequence of that
guideline – 100 times longer sentences for crack cocaine offenses than for powder cocaine offenses
– falls disproportionately upon black offenders.
We have had occasion to hear and reject constitutional challenges to the crack cocaine
guideline in the past. See, e.g., United States v. Butler, 102 F.3d 1191, 1194-95 (11th Cir.), cert.
denied, 117 S. Ct. 1712 (1997); United States v. Sloan, 97 F.3d 1378, 1383-84 (11th Cir. 1996), cert.
denied, 117 S. Ct. 2459 (1997); United States v. Terry, 60 F.3d 1541, 1544-45 (11th Cir. 1995), cert.
denied, 516 U.S. 1060 (1996). In this circuit, only the court of appeals sitting en banc, an overriding
United States Supreme Court decision, or a change in the statutory law can overrule a previous panel
decision. See United States v. Woodard, 938 F.2d 1255, 1258 (11th Cir. 1991); Davis v. Estelle, 529
F.2d 437, 441 (5th Cir. 1976).
Due Process Argument
Hanna contends that we should revisit our decisions upholding the constitutionality of the
crack cocaine guideline in light of the Supreme Court’s decision in BMW of North America v. Gore,
517 U.S. 559 (1996). There, the Court reversed an award of punitive damages in a civil action
because the award, $4 million, was so excessive as to violate substantive due process. Hanna argues
that the Gore decision sheds new light on the nature of substantive due process and may have
applicability in his case. We, however, continue to be bound by our precedent as Gore’s holding
does not overrule (or even relate to) our decisions on the crack cocaine guideline.
Equal Protection Argument
Hanna argues we should revisit our precedent upholding the crack cocaine guideline because
new findings made by the Sentencing Commission and communicated to Congress reveal that no
rational basis supports the sentence differential between crack and powder cocaine offenses. In our
previous cases, we have held that imposing longer sentences on crack cocaine offenders is rationally
related to the legitimate purpose of distinguishing between distinguishable drugs. See Terry, 60
2 F.3d at 1544-45 (“Congress distinguished between the kinds of cocaine, not to discriminate against
people, but because crack cocaine is more dangerous, more highly addictive, more easily available,
and less expensive than powder cocaine.”). Hanna argues that the recent dialogue between Congress
and the Sentencing Commission on repealing the crack/powder disparity is evidence of the absence
of a rational basis for the disparity.1 Similar arguments have been rejected in several of our sister
circuit courts of appeal. See United States v. Washington, 127 F.3d 510 (6th Cir. 1997), cert.
denied, 118 S. Ct. 2348 (1998); United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 1087 (1997); United States v. Teague, 93 F.3d 81 (2d Cir. 1996), cert. denied, 117
S. Ct. 708 (1997); United States v. Carter, 91 F.3d 1196 (8th Cir. 1996); United States v. Jackson,
84 F.3d 1154 (9th Cir.), cert. denied, 117 S. Ct. 445 (1996).
The Sentencing Commission is required to review and revise guidelines previously
promulgated and to submit amendments to Congress before the first of May each year. 28 U.S.C.
§ 994(o), (p). These amendments become effective by operation of law unless Congress passes a
law specifically disapproving of the amendment. 28 U.S.C. § 994(p). In May 1995, the Sentencing
Commission promulgated a series of amendments to Congress including one that would have
eliminated altogether the sentencing disparity between crack and powder cocaine. After conducting
a study at the direction of Congress, see Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, § 280006, 108 Stat. 1796, 2097, the Commission voted 4-3 to remove any
difference between cocaine base and cocaine powder, concluding that “sufficient policy bases for
the current penalty differential do not exist.” Notice of Submission to Congress of Amendments to
the Sentencing Guidelines, 60 Fed. Reg. 25,074, 25,076 (amendments proposed on May 1, 1985).
1 Hanna also argues we should apply a “strict scrutiny” standard of review. We see no evidence in the dialogue between the Commission and Congress that Congress’s rejection of the Commission’s proposed amendment was motivated by racial animus. Accordingly, we review the crack cocaine sentencing guideline to determine whether it is rationally related to a legitimate governmental purpose. See United States v. Byse, 28 F.3d 1165, 1168 (11th Cir. 1994).
3 Specifically, the Commission determined that many of the harms associated with crack cocaine
(such as the correlation with violence, incidence of repeat offenders, etc.) were already captured by
other guideline sentencing enhancements. Id. The Commission further observed in its notice to
Congress that the higher addiction rate of users of crack cocaine was attributable to the delivery
method – smoking – not to the nature of the substance. Id. at 25,077.
The amendment would have taken effect on November 1, 1995, but on October 30, 1995,
Congress rejected the amendment in an act presented to both houses and signed by President
Clinton. See Federal Sentencing Guidelines, Amendment, Disapproval, Pub. L. 104-38, 109 Stat.
334 (1985). In that same act, Congress mandated further study and revision of the crack cocaine
guideline, but specifically stated 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.” Id.
Hanna argues that the Sentencing Commission’s conclusion “sufficient policy bases for the
current penalty differential do not exist” is, in effect, an agency’s interpretation of its own rules and
is entitled to “controlling weight.” Stinson v. United States, 508 U.S. 36, 45 (1993); see also
Washington, 127 F.3d at 518 (dissenting opinion). In Stinson, the Supreme Court held that
commentary to the Sentencing Guidelines that functions “to interpret a guideline or explain how it
is to be applied” is binding on courts applying the Guidelines. Stinson, 508 U.S. at 42-43. The
Court analogized the Commission’s commentary to an agency’s interpretation of its own legislative
rule. An agency’s interpretation of a legislative rule must be given “‘controlling weight unless it
is plainly erroneous or inconsistent with the regulation.’” Id. at 45 (quoting Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945)).
Hanna uses the Stinson holding to argue that the Commission’s “interpretation” of its
guideline – that the guideline is not supported by sound policy – requires this court to find the
guideline irrational and unconstitutional. But even if we concluded that the Commission’s
4 explanation of the proposed amendment constituted an agency’s interpretation of a rule (a doubtful
proposition), nothing would require Congress to accept that interpretation. Congress can,
constitutionally, “veto” an agency’s interpretation of a legislative rule as long as the Article I, § 7
requirements are met. See INS v. Chadha, 462 U.S. 919, 944-51 (1983). Here, Congress clearly did
not accept the Commission’s conclusions concerning the sentence differential and disapproved of
the Commission’s proposed amendment in legislation that passed both houses and was signed by
the president. Therefore, we need not give the Commission’s conclusions about the sentence
differential any interpretive weight and, instead, must adhere to this Circuit’s precedent. See United
States v. King, 972 F.2d 1259, 1260 (11th Cir. 1992) (sentencing scheme for crack cocaine passes
rational basis test).
AFFIRMED.