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June 8, 1999


The opinion of the court was delivered by: Dalzell, District Judge.


Two vexing legal problems are at the center of Luis Humberto Barbosa's sentencing calculus. First, should we sentence Barbosa for heroin, the drug that he intended to possess, or for some form of cocaine, which it turned out (to everyone's surprise) that Barbosa actually possessed? Second, if he should be sentenced for some form of cocaine, should Barbosa, who has a prior felony drug conviction, be sentenced under 21 U.S.C. § 841(b)(1) for "cocaine" (which carries a ten year statutory mandatory minimum) or "cocaine base" (which carries a twenty year statutory mandatory minimum), when the drug he possessed is chemically identified as "cocaine base," but was not "crack"?*fn1

I. Background

Well before the second ship Peerless delivered its Bombay cotton on the Liverpool quay*fn2 and before "Rose" the cow was put out to pasture,*fn3 a feature of Anglo-American contract law has been the puzzle of mutual mistake of fact.*fn4 While the "common law" of federal sentencing is of far more recent vintage, it, too, is sometimes bedeviled by similar problems.

Consider Barbosa's case. The record at trial was replete with evidence that the Drug Enforcement Administration agents in this sting operation (along with the defendant himself) sincerely believed that Barbosa would swallow pellets of heroin, totaling near a kilogram, and then fly from Aruba to the United States where he would pass the contraband and deliver it to the confidential informant and his DEA colleagues.*fn5 All went precisely according to plan, and after Barbosa's arrest and seizure of the ninety-nine pellets he excreted, the pellets were taken to the DEA laboratory where they were chemically tested to confirm that they indeed contained heroin. To everyone's surprise, the pellets contained 882 grams of 85% pure cocaine base and not heroin.*fn6

Even as of the date of Barbosa's sentencing, the origins of this mutual mistake of fact will, it seems, always remain, in the words of the DEA's key informant, a "mystery". It is apparent that we are unlikely to learn the answer to this "mystery" because the likely perpetrator of the bait and switch, one Felix Zorilla, is said to be languishing in an Aruban jail after the authorities on that island found him with seventy-five kilograms of cocaine.

The identity of the substance at issue is highly consequential to this defendant because the Drug Quantity Table at U.S.S.G. § 2D1.1(c) and the mandatory minimum sentences under 21 U.S.C. § 841(b)(1) regard "cocaine base" with much greater severity than "heroin" or "cocaine." Thus, under the Guidelines 882 grams of heroin result in a base offense level of 30, see U.S.S.G. § 2D1.1(c) Table (5), 882 grams of "cocaine" result in a base offense level of 26, see U.S.S.G. § 2D1.1(c) Table (7), and 882 grams of "cocaine base" result in a base level of 36, see U.S.S.G. § 2D1.1(c) Table (2).*fn7

Therefore, at a Criminal History III, Barbosa is facing three Guidelines-based sentencing ranges: 121-151 months for heroin, 78-97 months for cocaine, and 235-293 months for cocaine base.

Against these sentencing ranges, however, we must overlay the statutory mandatory minimum sentence applicable under 21 U.S.C. § 841(b)(1) because Barbosa has a prior felony drug conviction.*fn8 For one with a prior felony drug conviction, the mandatory minimum sentence is ten years for 882 grams of heroin, see 21 U.S.C. § 841(b)(1)(B)(i), ten years for the same amount of cocaine, see 21 U.S.C. § 841(b)(1)(B)(ii), but twenty years for the same amount of cocaine base, see 21 U.S.C. § 841(b)(1)(A)(iii).

Depending on the substance that we find for sentencing purposes, therefore, the effective range for Barbosa's sentencing is: 121-151 months for heroin (as the Guidelines exceed the ten year statutory mandatory minimum), 120 months for "cocaine" (the statutory mandatory minimum trumping the lower Guideline range), and either 240 months or 240-293 months for "cocaine base" (depending on whether we apply the statutory mandatory minimum alone, or apply the mandatory minimum in conjunction with the Guidelines). See infra (explaining this last alternative in more detail). To this defendant, therefore, the consequences of this mutual mistake of fact are far graver than they were to Messrs. Sherwood and Walker and the charterers of the ships Peerless. In view of the importance of this issue, which became evident during Barbosa's trial, immediately after his conviction we ordered the parties to submit memoranda on this point.*fn9

II. Heroin Versus Some Form of Cocaine

Turning to the first issue, whether we should sentence Barbosa for the drug he actually possessed (some form of cocaine) or the drug he intended to possess (heroin), the heavy weight of authority holds that Barbosa should be sentenced for the drug he actually possessed — some form of cocaine. See United States v. Valencia-Gonzales, 172 F.3d 344, 345-46 (5th Cir. 1999) (holding that a defendant who believed he sold cocaine was properly sentenced under the higher heroin penalty because drug dealers assume the risk of what kinds and amounts of controlled substances they carry); United States v. Strange, 102 F.3d 356, 361 (8th Cir. 1996) (holding that a defendant who believed he was carrying marijuana was properly sentenced under higher cocaine penalty); United States v. Salazar, 5 F.3d 445, 446 (9th Cir. 1993) (holding that cocaine, like marijuana, is a controlled substance and regardless of the defendant's knowledge either of the nature or the weight of the substance, he knows that he is importing a controlled substance); United States v. Obi, 947 F.2d 1031, 1032 (2d Cir. 1991) (holding that the district court properly determined the sentence for heroin, rather than cocaine, even though the defendant believed he was carrying cocaine, and that the mens rea requirement for possession of a controlled substance satisfied due process concerns); United States v. Gomez, 905 F.2d 1513, 1514-15 (11th Cir. 1990) (holding that it was enough that the defendant knew that he was engaging in conduct to introduce some type of illegal substance into the stream of commerce and that he need not have specific knowledge of the particular drug involved as long as he knew he was dealing with a controlled substance).*fn10

In response to this line of cases, Barbosa argues that "there is a different dynamic in this case" because the Government's informants and agents gave Barbosa the idea to import heroin, supplied him with the resources to do it, and thus simple equity should dictate that he be sentenced for the drug that the Government and the defendant both believed he was transporting. See Barbosa's Memorandum on Sentencing at 4-5.*fn11

We reject Barbosa's argument because we find no evidence that the Government (or any of its agents) perpetrated the switch from heroin to some form of cocaine, or that any of the parties to the transaction in the United States (including the defendant himself) knew about the switch until the drugs were tested at a DEA laboratory after Barbosa's arrest. Furthermore, to the ...

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