USA v. Luis Gonzalez, Miguel Ayala, and Fidel Hernandez, 05-3528, 09-1529, 09-1631. 

The three defendants pleaded guilty to conspiring to distribute more than 50 grams of mixtures containing cocaine base. Gonzalez and Ayala were sentenced to 120 months in prison and Hernandez to 300 months.

Common to Gonzalez's and Ayala's appeals is the recurrent issue-which should have been laid to rest long ago-of distinguishing crack cocaine from other forms of cocaine base. Cocaine is the active ingredient of the coca leaf. After extraction from the leaf it is processed into cocaine hydrochloride for export to the United States and other countries by the addition of hydrochloric acid and other chemicals.

Cocaine hydro-chloride is a powder usually consumed either by being sniffed or by being dissolved in water and then injected. (It cannot be smoked because heating causes it to burn rather than vaporize.) Although cocaine hydrochloride is a salt (a technical term in chemistry), it can be converted to a base by various methods, two of which have been involved in cocaine usage in the United States.

The first adds water, and a chemical such as ammonia that removes the hydrochloric acid, and a further chemical, usually ether, to separate the cocaine from any remaining impurities. Pure cocaine is a base, and the cocaine base produced by the method just described is what is called "freebase."

The second method involves dissolving cocaine hydro-chloride in a solution of sodium bicarbonate (a "weak base," in chemistry jargon) and water, and boiling the new solution that results. The base produced by this method is called "crack."

The cocaine base produced by either method is a hard crystalline substance that when heated vaporizes. The inhalation of the vapor produces a more rapid and intense intoxication than sniffing powder cocaine or even (perhaps) injecting a liquid solution of it.

Freebase was the first form of cocaine base to become popular, but it fell out of favor because it was difficult to make and because the flammability of the ether created a risk of a serious burn injury, as famously befell the comedian Richard Pryor. In the United States today, though there are still freebasers, crack is generally believed to be the only form of cocaine base that is widely consumed. United States v. Plummer, 581 F.3d 484, 489 (7th Cir. 2009).

Congress has prescribed a mandatory minimum sentence of ten years for crimes involving 50 grams or more of a mixture containing "cocaine base," 21 U.S.C. § 841(b)(1)(A)(iii), but has not defined the term. The sentencing guidelines also prescribe increased penalties, in the form of higher base-offense levels, for crimes involving "cocaine base," U.S.S.G. § 2D1.1(c)-but define "cocaine base" as "crack." Id., Application Note D.

In a series of cases culminating in United States v. Edwards, 397 F.3d 570 (7th Cir. 2005), this court has held that the statutory term "cocaine base" likewise means "crack"-"the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form." Id. at 572. 

One reason for our adopting this definition was that pure cocaine-the cocaine in the coca leaf, before any pro- cessing-is a base, yet no reason has ever been suggested why Congress would have wanted crimes involving unprocessed cocaine to be punished more heavily than crimes involving cocaine hydrochloride. We thought it clear that "Congress intended the enhanced penalties [for crimes involving cocaine base] to apply to crack cocaine and the lesser penalties to apply to all other forms of cocaine." Id. at 574.

The plea agreements in this case authorized a sentencing enhancement for cocaine base only if the district judge found that the substance sold by the defendants "was cocaine base in the specific form for which enhanced penalties are required as set forth in" the Edwards case. The defendants interpret this to mean that the sentencing judge had to find that they had sold crack that had been "produced by mixing cocaine hydrochloride with baking soda and water, boiling the mixture until only a solid substance is left, and allowing it to dry, resulting in a rocklike substance."

There was abundant evidence that the cocaine sold by the defendants was crack but little evidence concerning how it had been produced. The usual method is indeed by heating a solution of cocaine hydrochloride and baking soda, the common name for sodium bicarbonate, a weak base as we said. But crack can also, as remarked in several cases, be produced by heating solutions of cocaine hydrochloride and other weak bases that, like sodium bicarbonate, strip the chlorine and hydrogen atoms from the cocaine molecule, yielding water, a chloride compound, cocaine base, and whatever is left of the weak base used to do the stripping.

It is a misreading of Edwards to suppose that the identity of the weak base used to produce crack was an element of our definition of the word.

The reason the issue of whether the cocaine base sold or possessed by a defendant is crack keeps being raised (as indeed it does), is dissatisfaction with the "street" definition of crack ("a form of cocaine base, usually prepared by processing cocaine hydrochlo-ride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form").

Something more technical, more rigorous, more precise is desired but isn't easy to come up with, because all cocaine base, unless it contains impurities, has the identical chemical composition.  And thus in the present case as in most cases some and often all the evidence concerning the drug possessed or sold by the defendant is verbal (for example, "I saw Gonzalez sell crack") rather than the drug itself.

The defendants complain that the witnesses used the word crack "colloquially," but crack has only a colloquial meaning; there is no chemical name for it because all forms of cocaine base are chemically the same.

We are hard pressed to understand why after all these years the Justice Department has yet to commission an expert study of the drug trade that would confirm, what is widely believed, that almost all cocaine base sold in this country is crack. We say "sold" rather than "consumed" because Internet sources indicate that some drug users who want the faster, more intense high produced by cocaine base but don't want to buy street-quality crack are continuing to make and consume their own freebase. 

A study such as we have suggested would go far to dissolve issues concerning the nature of the product in which a defendant charged with a crack offense dealt. Still, there is sufficient expert evidence, albeit qualitative rather than quantitative, that the sale of any form of cocaine base other than crack is rare to allay any concerns about Gonzalez's and Ayala's sentences.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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