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UNITED STATES v. BURROUGHS

August 21, 1995

UNITED STATES OF AMERICA
v.
ANDRE LONZELL BURROUGHS



The opinion of the court was delivered by: EDWARD N. CAHN

 Cahn, C.J.

 August 21, 1995

 Currently before the court is a petition by Andre Lonzell Burroughs to have his sentence modified pursuant to 28 U.S.C. § 2255. *fn1" For the reasons that follow, Burroughs' request for relief must be denied.

 I. BACKGROUND

 On August 24, 1990, a jury convicted Burroughs of distributing and conspiring to distribute cocaine base, or "crack cocaine," *fn2" in violation of 21 U.S.C. §§ 841(a)(1) & 846. The court sentenced Burroughs to ten years imprisonment pursuant to 21 U.S.C. § 841(b)(1) and U.S.S.G. §§ 2D1.1(4) & 5G1.1(b).

  Burroughs now argues that the pertinent sections of 21 U.S.C. § 841 and the Sentencing Guidelines which provide the penalties for crack cocaine (collectively the "cocaine sentencing scheme") violate the equal protection of the laws under the Fifth Amendment because they penalize activity involving a given quantity of crack cocaine much more severely than activity involving the same quantity of cocaine powder. *fn3" In making this argument *fn4" , Burroughs relies on United States v. Clary, 846 F. Supp. 768 (E.D. Mo.), rev'd, 34 F.3d 709 (8th Cir. 1994), cert. denied, 130 L. Ed. 2d 1126, 115 S. Ct. 1172 (1995), in which a district court in the Eighth Circuit held that the cocaine sentencing scheme implicates and fails strict scrutiny under equal protection analysis because it unfairly discriminates against black males. At the invitation of the court, the National Association for the Advancement of Colored People ("NAACP") filed an amicus brief. The NAACP argues that the United States Sentencing Commission's recent report and proposed amendments to the cocaine sentencing scheme contradict the factual basis of the Third Circuit's equal protection analysis in United States v. Jones, 979 F.2d 317 (3d Cir. 1992), and reveal that the sentencing scheme fails rational review.

 II. DISCUSSION

 A. The statutory distinction

 With the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986), Congress created the basic statutory framework of mandatory minimum penalties that currently apply to federal drug trafficking offenses. Congress amended 21 U.S.C. § 841 to provide for a 100:1 ratio in the quantities of cocaine powder and crack cocaine that trigger mandatory minimums. In other words, an offender must distribute 100 times as much cocaine powder as a similar crack offender to receive the same base sentences. 21 U.S.C. § 841(b)(1)(A) mandates a ten-year term of imprisonment for offenses involving 5000 grams of cocaine powder or only 50 grams of cocaine base. Similarly, 21 U.S.C. § 841(b)(1)(B) mandates a five-year term of imprisonment for offenses involving 500 grams of cocaine powder or 5 grams of cocaine base. The United States Sentencing Commission utilized these mandatory minimum penalties as reference points in deriving Sentencing Guidelines which, consequently, employ the same 100:1 ratio. For example, trafficking in 5000 grams of powder cocaine or 50 grams of cocaine base is assigned offense level 32, a level corresponding to a guideline range of 121-151 months for a defendant in Criminal History Category I. See U.S.S.G. § 2D1.1. The 100:1 ratio between cocaine powder and crack cocaine inherent in the cocaine sentencing scheme has a profound effect on the sentences imposed upon defendants. The instant case is illustrative. Burroughs distributed and conspired to distribute 141.9 grams of crack cocaine. He was therefore subject to a minimum of ten years imprisonment under 21 U.S.C. §§ 841(b)(1)(A) and 846, and, with a two point reduction for acceptance of responsibility, 97-121 months imprisonment under the Sentencing Guidelines. Accordingly, the Guidelines required a sentencing range of 120-121 months. Id. at 5G1.1(b). In contrast, had Burroughs trafficked a like amount of cocaine powder, and assuming the same two point reduction for acceptance of responsibility, he would have been subject to a term of imprisonment of only 21-27 months.

 B. Equal protection analysis

 1. Strict scrutiny

 The equal protection component of the Fifth Amendment Due Process Clause commands that similarly situated people must be treated alike. Judicial review under equal protection is conducted under different levels of scrutiny depending upon the nature of the alleged violation. If it is demonstrated that a legislature passed a law with a discriminatory purpose, the court must review the challenged legislation under the demanding "strict scrutiny" standard. See Rogers v. Lodge, 458 U.S. 613, 617 n.5, 73 L. Ed. 2d 1012, 102 S. Ct. 3272 (1982). In such cases, the government must prove that the legislative classification is narrowly tailored to achieve a compelling government interest. Miller v. Johnson, 132 L. Ed. 2d 762, 115 S. Ct. 2475, 2482 (1995).

 In United States v. Frazier, 981 F.2d 92 (3d Cir. 1992), the Court of Appeals for the Third Circuit squarely rejected the notion that discriminatory intent led to the passage of the powder/base distinction in the cocaine sentencing scheme. Although it acknowledged that even facially neutral statutes might disguise invidious racial classifications, the court found "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." Id. at 95. Strict scrutiny, therefore, was not warranted. Id.

 Burroughs asks this court to consider United States v. Clary, 846 F. Supp. 768 (E.D. Mo. 1994). In Clary, the district court responded to the Supreme Court's warning that the possibility of racial discrimination "demands a sensitive inquiry into such circumstantial evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). *fn5"

 The court proceeded to provide an insightful analysis of the historical background and the contemporaneous sequence of events and congressional statements leading up to the passage of the cocaine sentencing scheme, as well as the ...


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