ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal Action No. 91-00164-2). (D.C. Criminal Action No. 91-00164-3). (D.C. Criminal Action No. 91-00164-1).
Before: Hutchinson and Alito, Circuit Judges and Fullam, District Judge*fn*
Gilbert Frazier, Aaron Singleton, and Dionne Pettus were named as defendants in a seven-count federal indictment charging drug offenses, and all three defendants eventually entered guilty pleas pursuant to plea agreements. Frazier and Singleton pled guilty to a charge of conspiracy to distribute and to possess with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846. Dionne Pettus pled guilty to distribution of and possession with intent to distribute in excess of 5 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(B)(iii).
The federal drug statutes (see 21 U.S.C. §§ 841(b)(1), 846) and the provisions of the Sentencing Guidelines (see U.S.S.G. § 2D1.1) that apply to the defendants in this case treat cocaine base offenses much more severely than offenses involving an equal weight of some other form of cocaine.*fn1 Indeed, under these provisions an offense involving a given amount of cocaine base is treated like a comparable offense involving 100 times as much cocaine.*fn2 As a result of this penalty scheme, the defendants in this case received much more severe sentences than they would have received if their offenses had involved some other form of cocaine. For Frazier, for example, the range of imprisonment prescribed by statute was ten years to life (21 U.S.C. §§ 841(b)(1)(A)(iii), 846), and the range of imprisonment authorized by the Guidelines was 97 to 121 months.*fn3 He received a sentence of 120 months. Had his offense involved the same quantity of cocaine, the range of imprisonment prescribed by statute would have been any sentence of not more than 20 years (21 U.S.C. §§ 841(b)(1)(c), 846), and the sentencing range authorized by the Guidelines would have been 21 to 27 months.*fn4
Frazier, Singleton, and Pettus appeal their sentences and attack the constitutionality of the provisions of the statutes and Sentencing Guidelines that treat offenses involving cocaine base much more harshly than offenses involving the same weight of cocaine. They make three separate constitutional arguments. First, they contend that the term "cocaine base" is not given a specific technical definition in either the statutes or the Guidelines and is consequently so vague as to render its enforcement a violation of due process. Second, they maintain that the penalty scheme for cocaine base and cocaine offenses violates equal protection because cocaine base offenders are predominantly black while ordinary cocaine offenders are predominantly white. Third, they argue that the penalty scheme for cocaine base and cocaine offenses violates the Eighth Amendment prohibition of cruel and unusual punishment because the difference in the penalties for cocaine base and cocaine offenses is disproportionate to the relative gravity of those offenses. The vagueness argument has recently been rejected by this court. The other two constitutional attacks have been rejected by numerous other courts, and we now reject them as well. We also reject the additional sentencing arguments advanced by Singleton and Pettus.
After the briefs in this case were submitted, this court joined the unanimous judgment of at least nine other circuits*fn5 in holding that the distinction made in the federal statutes and Sentencing Guidelines between "cocaine base" and "cocaine" is sufficiently precise not to be constitutionally void for vagueness. United States v. Jones, 92-3190 (3d Cir. Nov. 5, 1992). While we are told that there is a circuit split as to the proper technical and chemical standard to be employed in defining the line between cocaine base and cocaine, the defendants do not claim that the substance involved in their offenses was not cocaine base under any of the definitions in use.
Defendants, all of whom are black, argue that the sentencing scheme's 100-to-1 ratio between cocaine and cocaine base is racially discriminatory. They claim that a very high percentage of defendants convicted for cocaine base offenses are black, while defendants convicted for cocaine offenses are more likely to be white. We will assume for purposes of this case that these racial disparities exist, but we do not think they are sufficient to establish an equal protection violation.
The statutes and guidelines do not on their face classify defendants by their race. Of course, the government may not use a facially non-racial characteristic that strongly correlates with race for cultural or socioeconomic reasons as a sham disguising invidious racial classification. This is the rule of Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). The defendants, however, have given us absolutely no reason to believe that this is a case in which the rule of Yick Wo applies. We join several other courts in agreeing that there is no evidence whatsoever that suggests that the distinction drawn between cocaine base and cocaine was motivated by any racial animus or discriminatory intent on the part of either Congress or the Sentencing Commission. See, e.g. United States v. Simmons, 964 F.2d 763 (8th Cir. 1992); United States v. Galloway, 951 F.2d 64 (5th Cir. 1992). Absent a racially discriminatory purpose, explicit or inferable, on the part of the law maker or law enforcer, the statutory distinction is subject only to rational basis review. See, e.g. Personnel Administrator v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979); Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). Even conscious awareness on the part of the legislature that the law will have a racially disparate impact does not invalidate an otherwise valid law, so long as that awareness played no causal role in the passage of the statute. Feeney, 442 U.S. at 279.*fn6
This court, 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. United States v. Jones, supra. But see State v. ...