The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
Defendant moves for an order declaring the distinction in sentencing between cocaine and cocaine base in 21 U.S.C. § 841 and in the United States Sentencing Guidelines unconstitutional in violation of the Fifth Amendment to the United States Constitution. For the reasons set forth below, Defendant's motion is denied.
On September 20, 1991, Madison pled guilty to the one count indictment, admitting he had possessed a controlled substance, namely cocaine, with intent to distribute. Sentencing by this Court is now pending, and the issue to be determined is whether Madison should be sentenced for possession of cocaine or cocaine base.
The Anti-Drug Abuse Act of 1986, P.L. 99-570, 100 Stat. 3207, ("the Act") amended the penalty section of 21 U.S.C. § 841 to provide new mandatory penalties. As a result, possession with intent to distribute a relatively small amount of a mixture or substance containing "cocaine base" carries the same penalty as possession with intent to distribute a mixture or substance containing other forms of cocaine, including cocaine hydrochloride.
For example, § 841(b)(1)(A) mandates a minimum sentence of 10 years for possession with intent to distribute 50 grams or more of a mixture or substance which contains cocaine base. However, to be subject to the mandatory 10 year penalty, one need possess 100 times that amount of a mixture or substance containing other forms of cocaine. The United States Sentencing Guidelines (the "Guidelines") incorporate this statutory distinction by providing a penalty for a given amount of a mixture or substance containing cocaine which is identical to that imposed for 1/100 the amount of a mixture or substance containing cocaine base. United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov. 1991). Neither the Act, nor 21 U.S.C. § 841, nor the Guidelines provides a definition of "cocaine base." The commentary to the Guidelines, however, equates cocaine base with "crack." U.S.S.G. § 2D1.1, comment.
Madison argues that he should be sentenced for possession with intent to distribute cocaine and not cocaine base on the grounds that: (1) the absence of a definition of "cocaine base" renders the cocaine base penalty provision too vague to be enforceable; (2) the distinction between cocaine and cocaine base made in the statute and in the Guidelines is not based on any rational criterion; and (3) enforcement of the cocaine base penalty deprives the defendant of equal protection of the law.
On October 24, 1991, the Court conducted an evidentiary hearing in connection with this matter. Testimony was heard from Roger Godino, a forensic chemist at the Drug Enforcement Agency, and Detective Sergeant Richard Canale of the Port Authority Police.
The "void-for-vagueness" doctrine requires that for a penal statute to meet the Fifth Amendment's due process requirements, the statute must: (1) "define the criminal offense with sufficient definitiveness that ordinary people can understand what conduct is prohibited," and (2) "establish minimal guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. 352, 357-8, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983). In a vagueness challenge which does not involve the First Amendment, the defendant must show that the law is impermissibly vague with respect to the facts of his own case. U.S. v. Mazurie, 419 U.S. 544, 550, 42 L. Ed. 2d 706, 95 S. Ct. 710 (1975).
A. Definition of "cocaine base"
Several Circuits have considered the vagueness challenge to the cocaine base penalty provision. Despite the varied definitions of "cocaine base" which the Circuits have adopted,
the Circuits do agree that whatever Congress intended by the term "cocaine base," it intended to include what is commonly known as "crack." See, e.g., U.S. v. Collado-Gomez, 834 F.2d 280 (2d Cir. 1987); U.S. v. Avant, 907 F.2d 623 (6th Cir. 1990); Williams, 876 F.2d 1521 (11th Cir. 1989); Shaw, supra ; Van Hawkins, supra ; Barnes, supra ; Brown, supra.
The legislative history of the Act supports the conclusion that Congress used cocaine base as a synonym for crack. The Senate version of the bill which was ultimately enacted used the term "cocaine base," S. 2878, 99th Cong., 2d Sess. § 1002, 132 Cong.Rec. S13649 (daily ed. Sept. 25, 1986), while the House version of the bill used the term "cocaine freebase." H.R. 5394, 99th Cong., 2d Sess. § 101 (1986). Nothing in the legislative history indicates that "cocaine freebase" and "cocaine base" were not used synonymously. At the same time that these bills were being considered, the House Committee on the Judiciary issued an unrelated report which made reference to "Crack, the street name for cocaine freebase, a preparation of cocaine hydrochloride and sodium bicarbonate." Thus, because the House was using "cocaine freebase" as ...