August 3, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-2232
UNITED STATES,
Appellee,
v.
DARYL E. SINGLETERRY,
Defendant, Appellant.
ERRATA SHEET
The opinion of this court issued on July 18, 1994, is amended as follows:
Page 4, third line from the bottom: Replace "Fed. R. Crim. P. 39(a)" with "Fed. R. Crim. P. 29(a)."
United States Court of Appeals For the First Circuit
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Stephen H. MacKenzie for appellant.
Michael M. DuBose, Assistant United States Attorney, with whom
Jay P. McCloskey, United States Attorney, was on brief for appellee.
July 18, 1994
STAHL, Circuit Judge. In this appeal, defendant-
appellant Daryl E. Singleterry contests his jury conviction
and resulting sentence for violation of federal drug
trafficking laws. Singleterry raises two issues for our
consideration. First, he protests the district court's
refusal to instruct the jury to determine whether the
prosecution produced sufficient evidence to establish the
trustworthiness of his voluntary, extrajudicial confession.
Second, Singleterry, who is black, maintains that his
sentence violates the equal protection component of the Fifth
Amendment because the difference in punishment for cocaine
base ("crack") offenses and cocaine ("cocaine powder")
offenses is either irrational or racially discriminatory.
Finding neither argument persuasive, we affirm.
I.
BACKGROUND
On January 14, 1993, Maine law enforcement agents,
responding to reports of drug dealing at the Days Inn in
Kittery, Maine, commenced surveillance of the motel. That
evening, they observed Jamee Landry, an associate of
Singleterry, exit Room 225 with George Wilson, another
Singleterry associate and suspected drug dealer. The two
entered Landry's car and drove to Portsmouth, New Hampshire,
where the agents lost their trail. Early the next morning,
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after they saw Landry enter Room 225, the agents executed
warrants to search both Room 225 and Landry's car.
The search revealed a number of items probative of
ongoing, armed drug trafficking. The agents first entered
and searched Room 225, where they found Singleterry and
Landry. They seized $2061 and a wallet containing
Singleterry's driver's license from the pocket of a jacket on
a night table in the room. Elsewhere in the room, the agents
discovered two savings account passbooks, both in
Singleterry's name, with a combined balance of $5100. In
Landry's car, the agents found a plastic bag containing 6.46
grams of crack cocaine in the glove compartment, a leather
gun holster on the front passenger seat, as well as a fully
loaded semi-automatic handgun under the same seat.
After this search concluded, the agents arrested
Singleterry, and properly informed him of his "Miranda
rights." Singleterry then provided the agents with a
voluntary confession telling them that he personally paid
$250 to his source in Lawrence, Massachusetts, for the
cocaine base found in the vehicle. He also admitted that he
had stolen the handgun seized by the agents, explaining that
he needed the handgun to protect himself from individuals who
were jealous of his cocaine business. In addition,
Singleterry told the agents that he did not have a job, that
he had been dealing cocaine base for a considerable period of
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time, and that the cash seized from his jacket pocket as well
as the money in his savings accounts were proceeds from his
sale of cocaine base in the Portsmouth, New Hampshire, area.
Finally, Singleterry stated that, as in this instance, he
purchased most of the cocaine base he sold from a source in
Lawrence or Lowell, Massachusetts. According to Singleterry,
he would ordinarily pay $250 for a quarter ounce of cocaine
base and then sell it for $1250.
Singleterry was charged in a three count indictment
with possession with intent to distribute cocaine, 21 U.S.C.
841(a)(1) and 841(b)(1)(B)(iii) (1988 & Supp. IV 1992)
(Count I), the use and carrying of a firearm in connection
with a drug trafficking offense, 18 U.S.C. 924(c) (1988 &
Supp. IV 1992) (Count II), and deriving certain personal
property from proceeds obtained as the result of drug
trafficking activity, 21 U.S.C. 853 (1988) (Count III).
The parties agreed to have the district court decide Count
III on the basis of the trial evidence.
At trial, the government introduced evidence
probative of the facts described above, relying heavily on
the agents' live testimony concerning Singleterry's
confession. At the close of the government's case in chief,
the defense moved for judgment of acquittal. See Fed. R.
Crim. P. 29(a). Defendant's primary contention was that the
government's evidence could not suffice to support a
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conviction because the government did not adequately
corroborate Singleterry's confession. See Opper v. United
States, 348 U.S. 84 (1954) (prohibiting convictions on the
basis of uncorroborated confessions). The government argued,
inter alia, that there was ample evidence to demonstrate the
truth and accuracy of the confession. The district court
reserved judgment until the close of all the evidence. After
the defense presented no evidence, the court denied
defendant's motion in a detailed ruling from the bench.
Singleterry timely requested a jury instruction
that "as a matter of law a confession alone is not sufficient
evidence upon which to convict the defendant, that the
confession must be accompanied by additional corroborative
[evidence] or sufficient indicia of reliability." The
district court refused to do so, explaining that the
corroboration inquiry is for the court and not the jury.
According to the district court, the role of the jury is
simply to consider whether the evidence establishes each
element of the offense beyond a reasonable doubt, although
the jury is free to question the probative value of a
confession in light of the strength or weakness of the
corroborative evidence.
After deliberating for less than an hour, the jury
convicted Singleterry on Counts I and II. The district court
later issued an orderof forfeiture in resolution ofCount III.
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At sentencing, the district court found that the
offense level, including relevant conduct, involved a total
of 73.66 grams of cocaine base, resulting in a base offense
level of 32. United States Sentencing Commission, Guidelines
Manual, 2D1.1 (Nov. 1993); see also 21 U.S.C.
841(b)(1)(B) (prescribing minimum and maximum sentences).
Because Singleterry had knowingly given false testimony at a
pre-trial suppression hearing, the court added a two-level
enhancement for obstruction of justice. U.S.S.G. 3C1.1.
With a total adjusted base offense level of 34 and a criminal
history category of III, the guideline range on Count I was
188 to 235 months.1 U.S.S.G. Ch.5, Pt.A. The district
court selected the minimum sentence of 188 months, imposing
as well the consecutive 60 month sentence mandated by 18
U.S.C. 924(c) for the firearm offense. In another ruling
from the bench, the district court rejected Singleterry's
argument that stiffer penalties for cocaine base offenses, as
opposed to cocaine powder offenses, violate Singleterry's
right to equal protection of the law.
1. If Singleterry had been convicted of possession with intent to distribute cocaine powder, and if his relevant conduct raised the total of cocaine powder involved to 73.66 grams, his base offense level would have been 16, adjusted to 18 after the two-level enhancement. U.S.S.G. 2D1.1 and
3C1.1; see also 21 U.S.C. 841(b)(1)(C) (prescribing maximum
sentences). With a criminal history category of III, the guideline range on this count would have been 33 to 44 months.
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II.
DISCUSSION
A. Trustworthiness of Confessions and the Role of the Jury
Singleterry contends that the district court
committed legal error when it refused to instruct the jury on
the need for corroboration of his confession. Specifically,
Singleterry urges us to adopt one of two propositions.
First, he suggests that, when the government's case rests
primarily on a defendant's confession, the district court
must instruct the jury to find the confession to be
trustworthy before considering it as evidence of guilt.
Second, Singleterry asserts that, even in the absence of a
general rule mandating such an instruction, the district
court is obliged to instruct the jury on the corroboration
requirement where the evidence of trustworthiness is so weak
that a jury might differ from the court in its resolution of
the question.
Whether the court must assign such a role to the
jury is a pure question of law subject to plenary review.
See, e.g., United States v. Gallo, 20 F.3d 7, 11 (1st Cir.
1994) (holding that de novo review is customary for questions
of law) (citing In re Howard, 996 F.2d 1320, 1327 (1st Cir.
1993)). Thus, although the district court's reasoning may
prove persuasive, and its conclusion coincide with our own,
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we are free to reject a reasonable reading of the law in
favor of the interpretation we view as correct.
To begin with, we note that a defendant's own
statements are never considered to be hearsay when offered by
the government; they are treated as admissions, competent as
evidence of guilt without any special guarantee of their
trustworthiness. See Fed. R. Evid. 801(d)(2) & advisory
committee's note; see also United States v. Barletta, 652
F.2d 218, 219 (1st Cir. 1981). Nevertheless, there is a
danger that the jury will rush to credit a confession without
seriously considering whether the defendant confessed to a
crime he did not commit. As a result, the federal courts
have adopted common law rules designed to prevent a jury from
convicting the defendant solely on the basis of an
untrustworthy confession. The general rule is that a jury
cannot rely on an extrajudicial, post-offense confession,
even when voluntary, in the absence of "substantial
independent evidence which would tend to establish the
trustworthiness of [the] statement." Opper v. United States,
348 U.S. 84, 93 (1954). See also Smith v. United States, 348
U.S. 147 (1954); Warszower v. United States, 312 U.S. 342
(1941); United States v. O'Connell, 703 F.2d 645 (1st Cir.
1983).2 The Court has explained that independent proof of
2. Many states adhere to a more traditional formulation of the corroboration rule, requiring independent proof of the corpus delicti ("body of the crime"), i.e., evidence
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the commission of the charged offense is not the only means
of establishing the trustworthiness of the defendant's
confession; another "available mode of corroboration is for
the independent evidence to bolster the confession itself and
thereby prove the offense `through' the statements of the
accused." Smith, 348 U.S. at 156.3
The doctrinal nature and procedural concomitants of
the trustworthiness requirement announced in Opper are not
entirely clear. Traditionally, the district court makes a
preliminary determination as to whether testimony about the
confession is sufficiently trustworthy for the jury to
consider the confession as evidence of guilt. See McCormick
145, at 562; Corey J. Ayling, Comment, Corroborating
Confessions: An Empirical Analysis of Legal Safeguards
independent of the confession showing that "(a) the injury or harm constituting the crime occurred; [and] (b) this injury or harm was done in a criminal manner." 1 McCormick on
Evidence 145, at 557 (John William Strong ed., 4th ed.
1992) (hereinafter "McCormick").
3. Singleterry misinterprets this comment as suggesting that a full confession (one involving admissions to all elements of the crime) automatically bolsters itself, eliminating the need for proof of trustworthiness. According to Singleterry, "under Opper and Smith, the prosecution may rely entirely on
a confession which is not even proven to be trustworthy and put forth no evidence establishing the corpus delicti." This is simply not so. The Court has never suggested that in certain cases the government would be relieved of the burden of proving the trustworthiness of a confession. Smith merely
stands for the proposition that in the absence of independent evidence of the corpus delicti the government may establish
the trustworthiness of the confession with other evidence typically used to bolster the credibility and reliability of an out-of-court statement.
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Against False Confessions, 1984 Wis. L. Rev. 1121, 1140
(hereinafter "Ayling"). In this respect, the Opper rule
essentially functions as a federal common law rule regulating
the admission of statements which "are much like hearsay,
[having had] neither the compulsion of the oath nor the test
of cross-examination." Opper, 348 U.S. at 90. See also
Ayling, supra, at 1136-37 & n.66 (arguing that the
corroboration rule "governs the admissibility of
evidence").4
4. Note that Federal Rule of Evidence 804(b)(3) provides an important parallel. Under Rule 804(b)(3), a confession by someone other than the accused is treated as hearsay admissible as evidence of guilt if certain conditions are satisfied. Rule 804(b)(3) rests on the assumption that, in general, "persons will not make damaging statements against themselves unless they are true." 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence 804(b)(3)[01], at
804-138 (1993). But such a confession cannot be used to prove the defendant's guilt unless its use is necessitated by the unavailability of the declarant for courtroom testimony. Fed. R. Evid. 804(b). Additionally, we are wary of individuals who, as a result of mental illness, a fit of passion, a misplaced sense of sacrifice, or sheer mendacity, falsely incriminate themselves in order to spare another. Thus, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Fed. R. Evid. 804(b)(3). It is also significant that the trustworthiness criterion of Rule 804(b)(3) is "cast in terms of a requirement preliminary to admissibility," Fed. R. Evid. 804(b)(3) advisory committee's note. As such, the district court makes the first and only official determination of trustworthiness, although it may be proper to instruct the jury that statements admissible under Rule 804(b)(3) "must be carefully scrutinized, weighed with great care, and received with caution." United States v. Miller, 987 F.2d 1462, 1465
(10th Cir. 1993).
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At the same time, courts often characterize
corroboration requirements as governing the sufficiency of
the evidence. See, e.g., Warszower, 312 U.S. at 347-48
(holding that "[a]n uncorroborated confession . . . does not
as a matter of law establish beyond a reasonable doubt the
commission of a crime"); O'Connell, 703 F.2d at 647-48
(analyzing corroboration issue in rejecting challenge to
sufficiency of evidence); McCormick, supra, 145, at 561-63.
In contrast to a simple rule of admissibility, a rule of
sufficiency might theoretically allow the trial judge to
instruct the jury to make the final determination as to
whether a confession has been corroborated. See id.
(reporting that some state courts treat the corroboration
requirement as a jury issue); Ayling, supra, at 1136-41. The
Supreme Court has not ruled on the question, and neither this
circuit nor any other circuit has adopted such a broad
approach. But cf. United States v. Marshall, 863 F.2d 1285,
1287 (6th Cir. 1988) (holding that the district court should
have instructed the jury on the corroboration requirement
where "[t]he need for corroboration [was] apparent").
It is within the uncertain framework of sufficiency
that Singleterry positions his appeal. Singleterry does not
claim that the district court erred in admitting evidence of
his confession. Nor does he assert that the district court
improperly found that the confession was adequately
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corroborated in denying the motion for judgment of
acquittal.5 Rather, Singleterry insists that, even after a
court has properly admitted evidence of a confession and
correctly tested the sufficiency of the evidence to support a
conviction, the court has a responsibility, either generally
or in certain cases, to instruct the jury to determine that
the confession is trustworthy before considering it as
evidence of guilt. This has never been the law in the
federal courts, and we decline to adopt such a rule today.
5. Two paragraphs in Singleterry's opening brief suggest that his appeal comprehends a challenge to the district court's denial of the motion for acquittal. Nonetheless, Singleterry's reply brief states that "Appellant is not arguing that the evidence was insufficient for the court to determine that the corpus delicti existed. Appellant is not arguing that . . . no rational trier of fact could find the corpus delicti sufficient." In any event, it is apparent that the district court did not err in finding that the government's evidence adequately established the trustworthiness of Singleterry's confession. Proof of the presence in Landry's car of 6.46 grams of cocaine base -- a controlled substance in an amount substantial enough to suggest an intent to distribute -- independently establishes the corpus delicti with respect to Count I. No more is
required to demonstrate the trustworthiness of Singleterry's confession to the tangible crime of possession of cocaine base with intent to distribute. See Wong Sun v. United
States, 371 U.S. 471, 489-90 n.15 (1963). That the
confession is trustworthy concerning admissions relative to Count I is strong evidence that the same confession is equally trustworthy concerning other admissions; namely, that Singleterry used the gun found in Landry's car to protect himself from rival drug dealers. Even if that admission were not sufficient to show that Singleterry "use[d] or carrie[d]" the gun "in relation to" his possession and intended distribution of the 6.46 grams of cocaine base, 18 U.S.C. 924(c)(1), the government's other physical evidence -- particularly the proximity of Singleterry's loaded gun to the cocaine base -- would most certainly allow a jury to reach that conclusion beyond a reasonable doubt.
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Although we cannot accept Singleterry's theory as
such, we do not mean to suggest that the district court has
no continuing duty to police the jury's consideration of a
confession's probative value. First, if the district court
loses confidence in its earlier determination of the
corroboration issue and the evidence is otherwise inadequate
to support a conviction, the proper course would be to enter
a judgment of acquittal. Alternatively, if the government's
remaining evidence could support a finding of guilt but the
jury's incurable exposure to the confession raises serious
questions about the prospect of a fair trial, the proper
course would be to declare a mistrial. See Stewart v. United
States, 366 U.S. 1, 10 (1961); United States v. Sepulveda, 15
F.3d 1161, 1184 (1st Cir. 1993), cert. denied, 62 U.S.L.W.
(U.S. June 20, 1994).
Second, a confession otherwise admissible under
Opper may nevertheless be inadmissible "if its probative
value is substantially outweighed by the danger of unfair
prejudice." Fed. R. Evid. 403.6
Third, particularly where a full confession
dominates the government's proof, it is fair to assume that a
jury will interpret its duty to find guilt beyond a
reasonable doubt to mean that it cannot simply accept a
6. Singleterry does not argue on appeal that the district court should have excluded evidence of the confession, or any portion thereof, on Rule 403 grounds.
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confession at face value. See D'Aquino v. United States, 192
F.2d 338, 357 (9th Cir. 1951) (holding that where there is
adequate corroboration of the confession "the usual
instructions on presumption of innocence and reasonable doubt
adequately cover[] all that the jury need be told upon this
question of [corroboration]") (citing Pearlman v. United
States, 10 F.2d 460 (9th Cir. 1926)), cert. denied, 343 U.S.
935 (1952); McCormick, supra, 145, at 564 ("Nor is there
sufficient need to submit the matter to the jury, as long as
the jury is adequately sensitized to the need to find all
elements of the crimes charged beyond a reasonable doubt.").
Fourth, we note that a judge has wide latitude to
select appropriate, legally correct instructions to ensure
that the jury weighs the evidence without thoughtlessly
crediting an out-of-court confession. Cf. Miller, 987 F.2d
at 1465 (holding that district court properly instructed jury
that it could rest guilty verdict on uncorroborated yet
credible testimony of an accomplice but should "keep in mind
that such testimony is always to be received with caution and
weighed with great care"); United States v. Twomey, 884 F.2d
46, 53 (1st Cir. 1989) (suggesting that court may "assist the
jury by demonstrating to them how to go about analyzing the
evidence"), cert. denied, 496 U.S. 908 (1990); Ayling, supra,
at 1141 (arguing that "guidance on the means of determining
the ultimate credibility of the evidence accords with the
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jury's role as finder of evidentiary sufficiency").
Accordingly, even if the district court has properly admitted
evidence of a confession, the court has the discretion to
determine that the question of trustworthiness is such a
close one that it would be appropriate to instruct the jury
to conduct its own corroboration analysis.
In this case, there is no indication that the
district court overlooked its obligation to avoid or limit
undue prejudice stemming from evidence of Singleterry's
confession. The district court had no occasion to exclude
the confession under Rule 403, correctly found that the
confession was trustworthy, and properly instructed the jury
on the government's burden of proof. Finally, in a
manifestly appropriate exercise of discretion, the court
directed the jury to "consider any . . . facts or
circumstances disclosed by the evidence . . . tending to
corroborate or to contradict the version of events which the
witnesses have told you."
In sum, there was no error in the lower court's
refusal to instruct the jury to apply the Opper
trustworthiness requirement before considering Singleterry's
confession to be probative of his guilt.
B. Constitutionality of Sentencing Distinction Between
Cocaine Base and Cocaine Powder
Singleterry maintains that his sentence on Count I
is the product of an unconstitutional distinction between
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offenses involving cocaine base and those involving cocaine
powder. See 18 U.S.C. 841(b); U.S.S.G. 2D1.1(c)
(equating 1 gram of cocaine base with 100 grams of cocaine).
Singleterry did not contend below that the laws at issue are
facially unconstitutional. Instead, he offered evidence in
an attempt to demonstrate that the sentencing distinction
between cocaine base and cocaine is either irrational,
racially motivated, or both. On appeal, Singleterry
essentially argues that the district court erroneously
applied the relevant constitutional principles to the facts
found at the sentencing hearing. We first recite the
procedural rules that govern this portion of our analysis,
then turn to a brief discussion of the merits.
While pure questions of law are subject to de novo
review, we generally examine a district court's fact-based
determinations for clear error. Williams v. Poulos, 11 F.3d
271, 278 (1st Cir. 1993); In re Howard, 996 F.2d at 1327-28.
Thus, the district court's findings of fact are conclusive on
appeal "unless, after carefully reading the record and
according due deference to the trial court's superior ability
to judge credibility, we form `a strong, unyielding belief
that a mistake has been made.'" Williams, 11 F.3d at 278
(quoting Dedham Water Co. v. Cumberland Farms Dairy, Inc.,
972 F.2d 453, 457 (1st Cir. 1992)). The same standard of
review often applies to mixed questions of law and fact,
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although we are less likely to defer to the district court's
conclusions where proper application of the law primarily
requires a clarification of the relevant legal principles.
Id. at 278 & n.11 (citing In re Howard, 996 F.2d at 1328).
The clear error standard does not apply, however,
when the fact-finding at issue concerns "legislative," as
opposed to "historical" facts. See generally Dunagin v. City
of Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en banc)
(plurality), cert. denied, 467 U.S. 1259 (1984); Menora v.
Illinois High Sch. Ass'n, 683 F.2d 1030, 1036 (7th Cir.
1982), cert. denied, 459 U.S. 1156 (1983); see also Lockhart
v. McCree, 476 U.S. 162, 168-69 n.3 (1986) (reserving
question while suggesting approval of plurality opinion in
Dunagin). "Legislative facts are those general
considerations that move a lawmaking or rulemaking body to
adopt a rule, as distinct from the facts which determine
whether the rule was correctly applied." Menora, 683 F.2d at
1036. Accordingly, we need not defer to the lower court's
assessment of the "evidence" Singleterry offers to
demonstrate the irrational and racially discriminatory nature
of the adoption of the distinction between cocaine base and
cocaine powder offenses.
1. Irrational Classification
It is well settled that an irrational
classification imposed by federal law is violative of the
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equal protection component of the Fifth Amendment's Due
Process Clause. See Miranda v. Secretary of Treasury, 766
F.2d 1, 6 (1st Cir. 1985) (citing Mathews v. De Castro, 429
U.S. 181, 182 n.1 (1976)). Singleterry contends that a
distinction between cocaine base and cocaine powder is such a
classification because the use of cocaine base allegedly
presents no greater health threat than the use of cocaine
powder. Yet Singleterry presents little or no evidence to
support this contention, nor has he explained why such
evidence would be dispositive of the rationality of the
distinction at issue.
Even if there is no telling difference in the
health effects associated with the use of different types of
cocaine, it would be rational to treat cocaine base offenses
more harshly for other reasons. For example, Congress could
rationally seek to strengthen the deterrent effect of the
narcotics laws by increasing the "cost" to a criminal of
using or selling a cocaine substance that, like cocaine base,
is sold at a cheaper unit price than other cocaine
substances. Indeed, of the four citations to the
Congressional Record that Singleterry offers in his opening
brief as probative of congressional intent, each suggests
that Congress has been concerned that the low price of
cocaine base (in the absolute sense as well as relative to
cocaine) would lead to an explosion in drug use.
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In any event, the district court correctly
concluded that "Congress had before it sufficient . . .
information to make distinctions that would justify . . .
more severe sentences for trafficking in or using cocaine
base or crack than cocaine itself." Accord United States v.
Frazier, 981 F.2d 92, 95 (3d Cir. 1992) (noting that the
Third Circuit, "along with every other federal court of
appeals to rule on the issue, has held that the distinction
between cocaine base and cocaine in the federal sentencing
scheme is constitutional under rational basis equal
protection review"), cert. denied, 113 S. Ct. 1661, 1662
(1993).
2. Racially Discriminatory Classification
Singleterry next argues that the harsher penalties
for cocaine base offenses are unconstitutional because they
have such a disproportionate effect on blacks as to give rise
to an inference that Congress and the Sentencing Commission
established those penalties for the purpose of racial
discrimination. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
As proof of disparate impact, Singleterry offers some
evidence that (1) most cocaine base users are black while
most users of cocaine are white, and (2) the vast majority of
sentences for cocaine base offenses are imposed on black
defendants while white defendants comprise the largest share
of those sentenced for cocaine offenses. In addition,
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Singleterry has offered some evidence that Congress
anticipated such an impact because, in adopting heightened
penalties for cocaine base offenses, it was attempting to
address a problem afflicting lower-income urban communities.
We agree that where evidence of disparate impact
leads most naturally to an inference of discriminatory
purpose, the governmental classification may be subject to
strict scrutiny under equal protection principles. See
McCleskey v. Kemp, 481 U.S. 279, 293 (1987) (holding that
"`stark'" statistical pattern may serve "as the sole proof of
discriminatory intent under the Constitution") (quoting
Village of Arlington Heights v. Metropolitan Hous. Dev.
Corp., 429 U.S. 252, 266 (1977)); Washington v. Davis, 426
U.S. 229, 242 (1976) ("[D]iscriminatory impact . . . may for
all practical purposes demonstrate unconstitutionality
because in various circumstances the discrimination is very
difficult to explain on nonracial grounds."); Gomillion v.
Lightfoot, 364 U.S. 339, 341 (1960); Yick Wo, 118 U.S. at
373-74. But here, as we suggested in discussing the
rationality of the sentencing scheme, there are racially
neutral grounds for the classification that more "plausibly
explain[]" its impact on blacks. Personnel Adm'r v. Feeney,
442 U.S. 256, 275 (1979). As a result, there is insufficient
evidence "that the distinction drawn between cocaine base and
cocaine was motivated by any racial animus or discriminatory
-20- 20
intent on the part of either Congress or the Sentencing
Commission." Frazier, 981 F.2d at 95 (citing United States
v. Simmons, 964 F.2d 763 (8th Cir.), cert. denied, 113 S. Ct.
632 (1992), and United States v. Galloway, 951 F.2d 64 (5th
Cir. 1992)). But see United States v. Clary, 846 F. Supp.
768 (E.D. Mo. 1994) (holding that sentencing distinction
between cocaine base and cocaine powder violates equal
protection principles after finding circumstantial evidence
of unconscious discriminatory purpose). In short, there was
no error in the district court's determination to this
effect.
Finally, we note that while "[t]he equal protection
obligation imposed by the Due Process Clause of the Fifth
Amendment is not an obligation to provide the best governance
possible," Schweiker v. Wilson, 450 U.S. 221, 230 (1981), the
absence of a constitutional command is not an invitation to
government complacency. Although Singleterry has not
established a constitutional violation, he has raised
important questions about the efficacy and fairness of our
current sentencing policies for offenses involving cocaine
substances. We leave the resolution of these matters to the
considered judgment of those with the proper authority and
institutional capacity.
III.
CONCLUSION
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For the foregoing reasons, we affirm Singleterry's
conviction as well as his sentence.
So ordered.
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