much broader fashion (e.g., using the scientific definition of
"cocaine base" rather than limiting the definition to "crack"
cocaine), it would not re-interpret the statute in the absence of
new guidance from Congress. See Jackson, 59 F.3d at 1422-24;
Palacio, 4 F.3d at 154.
By contrast, in United States v. Munoz-Realpe, 21 F.3d 375
(11th Cir. 1994), the Eleventh Circuit reached the opposite
conclusion. In Munoz-Realpe, the Court, relying solely on the
Sentencing Commission's amendment of U.S.S.G. § 2D1.1, see
supra, abrogated its previous ruling that "cocaine base," as
used in 21 U.S.C. § 960(b), was not limited to "crack" cocaine.
See id. at 376-79. The Eleventh Circuit panel held that the
precedential force of its prior decisions had been eroded because
Congress, in ratifying by inaction the Sentencing Commission's
amendment of the Guidelines in § 2D1.1, suggested that it intends
the term "cocaine base" to include only "crack" cocaine. See
id. at 377-78 ("By allowing the amendment to take effect,
Congress has given its imprimatur to the new definition of
`cocaine base'; Congress indicated that it intends the term
`cocaine base' to include only crack cocaine. Because Congress
has provided this new definition, we think it is proper for us to
look to the Guidelines in determining the meaning of `cocaine
base' in the mandatory minimum statute, especially since both
provisions seek to address the same problem.").
We believe the reasoning of Munoz-Realpe does not survive the
Supreme Court's subsequent decision in Neal v. United States,
516 U.S. 284, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996). In Neal, a
unanimous Supreme Court rejected a claim that the Sentencing
Commission's revision of § 2D1.1 of the Sentencing Guidelines
required reconsideration of the Court's prior interpretation of a
related statutory provision. See id. at 766-69 (holding that
while the Sentencing Commission may have expertise as to the
Guidelines, the commission's choice of an alternative methodology
for weighing LSD does not alter the Court's prior interpretation
of the mandatory minimum statute).
To explain the Court's unanimous decision in Neal, some
background is in order. In Chapman v. United States,
500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), the Supreme Court
interpreted the undefined phrase "mixture or substance" in the
mandatory minimum provision for LSD, see
21 U.S.C. § 841(b)(1)(B)(v), by applying the "ordinary meaning" of those
terms and ruling that offenders should be sentenced on an "actual
weight" basis — e.g., based on the weight of the drug combined
with the weight of the paper which holds the LSD, rather than the
weight of the pure LSD alone. See Chapman, 500 U.S. at 468, 111
S.Ct. 1919. Two years after Chapman, the Sentencing Commission
altered the "actual weight" approach to sentencing in favor of a
"dose-based" method, in which each dose of LSD was assigned a
fixed-weight of 0.4 milligrams. See U.S.S.G., Appendix C,
Amend. 488 (Nov. 1993) (revising U.S.S.G. § 2D1.1).
In Neal, the defendant argued that the Sentencing
Commission's revised definition of "mixture or substance"
controlled the mandatory-minimum sentence calculation under
21 U.S.C. § 841(b). A unanimous Supreme Court rejected this
contention, reiterating that Chapman defined the terms "mixture
or substance" for purposes of 21 U.S.C. § 841(b), and that
"[o]nce we have determined a statute's meaning, we adhere to our
ruling under the doctrine of stare decisis, and we assess an
agency's later interpretation of the statute against that settled
law." Neal, 116 S.Ct. at 768-69.
Thus, the Supreme Court held that Chapman's plain meaning
interpretation of "mixture or substance" governs the
determination of a defendant's statutory mandatory minimum
sentence under 21 U.S.C. § 841(b), even where the Sentencing
Commission adopts a conflicting definition for purposes of the
Sentencing Guidelines. See id.; see also United States v.
78 F.3d 1483, 1486 (10th Cir. 1996) ("The Sentencing Commission
does not have the authority to override or amend a statute.").
D. What is "Cocaine Base"?
Therefore, applying the "ordinary" chemical definition of
"cocaine base," see supra (explaining the chemistry of cocaine
and cocaine base), rather than the artificial definition the
Sentencing Commission chose, we find that the substance Barbosa
possessed was "cocaine base" for purposes of the statutory
mandatory minimum. See Corning Glass Works v. Brennan,
417 U.S. 188, 201, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (holding that when
Congress has used technical words or terms of art, the term must
be given its technical or scientific meaning). We are fortified
in our conclusion by the fact that most of the seven Courts of
Appeals that (by our count) addressed the issue held or
suggested, prior to the Sentencing Commission's amendment of
U.S.S.G. § 2D1.1 in 1993, that "cocaine base" was not limited to
We are also fortified by the reality that, while Justice Scalia
described the Commission as "a sort of junior-varsity
Congress,"*fn17 it is nonetheless subordinate in its law-making
authority to the Article I, varsity Congress.
IV. Barbosa's Sentence
As we noted at the beginning of this Memorandum, if we chose to
sentence Barbosa for "cocaine base," his sentence would be either
240 months (the statutory mandatory minimum) or 240-293 months
(the mandatory minimum in conjunction with the sentencing
Guidelines range). Because we apply the "ordinary" (and broader)
scientific definition of "cocaine base" under the mandatory
minimum statute to Barbosa's sentence, rather than the more
lenient definition the Sentencing Commission created under
U.S.S.G. § 2D1.1, we will sentence Barbosa to the statutory
mandatory minimum of 240 months.
As applied to Barbosa, this sentencing analysis unquestionably
produces a harsh — though not the harshest — result. Barbosa
might, however, do well to consider his own words played for the
jury at trial.
At the end of the Government's surveillance videotape, Barbosa
is overheard telling the Government's informants, "now it's time
to go to work," as he heads towards the bathroom to excrete more
pellets. Barbosa well knew that his "work" was illegal under
federal law, given his prior felony conviction for precisely the
same conduct in the early-1990s. It was thus he who started the
chain of events that led to
finding "cocaine base," rather than "heroin," in the DEA's assay.
Nevertheless, Barbosa can be forgiven if he feels like Dorothy
when she said to her dog, "Toto, I don't think we're in Kansas
any more." Regrettably, if we pull back the curtain of the
Sentencing Commission — the agency statutorily placed to bring
anomalies like Barbosa's to Congress's attention*fn18 — we today
find less than Dorothy's quartet did.*fn19