On Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 00-cr-00636-1) District Judge: Honorable Joseph E. Irenas
Before: Sloviter, Roth And Chertoff,
The opinion of the court was delivered by: Chertoff, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) October 15, 2003
In this appeal from his conviction for distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), Appellant Clarence D. Brigman alleges that the Government failed to prove the cocaine in his possession was "crack" for purposes of Section 2D1.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). We determine that there was sufficient evidence for the District Court to find that Brigman possessed "crack," and we will affirm his sentence.
On August 12, 1999, Brigman and co-defendant Frank Jennings were arrested after Camden, New Jersey police found a quantity of drugs in a vehicle they were driving. On September 27, 2000, both men were indicted on federal drug charges. On April 27, 2001, while Brigman remained a fugitive, Jennings pled guilty to a superseding information charging him with distribution and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). Brigman was arrested on April 11, 2002, and six months later, on October 9, 2002, Brigman pled guilty to a superseding information charging him with distribution of and possession with intent to distribute a Schedule II narcotic drug controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). At the time of his plea, Brigman reserved the right to argue that the drugs in his possession were not crack cocaine.
On January 10, 2003, the District Court held an evidentiary hearing to determine the identity of the controlled substance in Brigman's possession at the time of the arrest. At the hearing, a Drug Enforcement Agency ("DEA") chemist testified that the drugs seized from Brigman's possession were cocaine base. The DEA case agent also testified, and said that Brigman's cocaine was "crack." Further, the Government offered the statements of co-defendant Jennings, who admitted that the drugs he and Brigman possessed were "crack." On February 21, 2003, the District Court determined that the drugs in Brigman's possession were crack cocaine. Brigman was sentenced to a 188 month term, the bottom of his Sentencing Guideline range of 188 to 235 months.
Jurisdiction in the District Court rested on 18 U.S.C. § 3231. This Court has jurisdiction over the challenge to the sentence because the judgment is a final order under 28 U.S.C. § 1291, and Brigman has a statutory right to appeal under 18 U.S.C. § 3742(a).
Cocaine is a naturally occurring substance that is derived from the leaves of the erythroxylon plant. United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy, at vi (1995) [hereinafter " Special Report "]. There are five basic forms of the drug: coca leaves, coca paste, powder cocaine, freebase cocaine, and crack cocaine. Id. at 11. There are three base forms of cocaine: coca paste, freebase cocaine, and crack cocaine. Id. Coca paste, not usually imported into the United States, is "a chunky, off-white to light-brown, puttylike substance that exists primarily as an intermediate product in the processing of coca leaves into powder cocaine." Id.
Both freebase cocaine and crack cocaine are forms of cocaine base produced from powder cocaine. Id. at 13. In this form, the powder cocaine has been "freed" from the salt substrate and is once again in a base form similar to that of coca paste. Id. To create freebase cocaine, powder cocaine is dissolved in water and a strong alkaloid solution, typically ammonia is added, along with another organic solvent like ether. Id. The use of this process was first documented in the 1970s, but "many resisted the freebasing process because of its complexity and potential danger. Ether, a highly volatile and flammable solvent, will ignite or explode if the freebase cocaine is smoked before the ether has evaporated entirely." Id. Cocaine base prepared using the freebase method was replaced by the crack method. See, e.g., United States v. Johnson, 976 F. Supp. 284, 290 (D. Del. 1997) ("[F]reebase cocaine... seems to have outlived its utility with the emergence of crack cocaine.")
To produce crack cocaine, the powder cocaine is dissolved in a solution of sodium bicarbonate*fn1 and water, which is then cooked, leaving a solid substance called crack cocaine. Special Report at 14. "The crack cocaine is broken or cut into 'rocks,' each typically weighing from one-tenth to one-half a gram." Id. This method is considered to be the most common method of producing cocaine base. See United States v. Barbosa, 271 F.3d 438, 462 (3d Cir. 2001). "Crack" is not a chemical term; it describes a substance that results from a general method for making cocaine base out of powder cocaine. See United States v. Waters, 313 F.3d 151, 156 (3d Cir. 2002). The Sentencing Guidelines note, " '[c]rack' is the street name for a form of cocaine base, ...