DEPIERRE v. UNITED STATES

Opinion of the Court

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SUPREME COURT OF THE UNITED STATES
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No. 09–1533

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FRANTZ DEPIERRE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[June 9, 2011]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

At the time of petitioner’s conviction and sentence, federal law mandated a minimum 10-year sentence for persons convicted of certain drug offenses, 21 U. S. C. §841(a), including those involving 50 grams or more of “a mixture or substance . . . which contains cocaine base,” §841(b)(1)(A)(iii), and a minimum 5-year sentence for offenses involving 5 grams or more of the same, §841(b)(1)(B)(iii). This case requires us to decide whether the term “cocaine base” as used in this statute refers generally to cocaine in its chemically basic form or exclusively to what is colloquially known as “crack cocaine.” We conclude that “cocaine base” means the former.

I

A

As a matter of chemistry, cocaine is an alkaloid with the molecular formula C17H21NO4. Webster’s Third New International Dictionary 434 (2002). An alkaloid is a base— that is, a compound capable of reacting with an acid to form a salt.1 Id., at 54, 180; see also Brief for Individual Physicians and Scientists as Amici Curiae 2–3 (hereinafter Physicians Brief). Cocaine is derived from the coca plant native to South America. The leaves of the coca plant can be processed with water, kerosene, sodium carbonate, and sulphuric acid to produce a paste-like substance. R. Weiss, S. Mirin, & R. Bartel, Cocaine 10 (2d ed. 1994). When dried, the resulting “coca paste” can be vaporized (through the application of heat) and inhaled, i.e., “smoked.” See United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 11–12 (1995) (hereinafter Commission Report). Coca paste contains C17H21NO4—that is, cocaine in its base form.

Dissolving coca paste in water and hydrochloric acid produces (after several intermediate steps) cocaine hydrochloride, which is a salt with the molecular formula C17H22NO4+Cl-. Id., at 12; Physicians Brief 3. Cocaine hydrochloride, therefore, is not a base. It generally comes in powder form, which we will refer to as “powder cocaine.” It is usually insufflated (breathed in through the nose), though it can also be ingested or diluted in water and injected. Because cocaine hydrochloride vaporizes at a much higher temperature than chemically basic cocaine (at which point the cocaine molecule tends to decompose), it is generally not smoked. See Commission Report 11, n. 15, 12–13.

Cocaine hydrochloride can be converted into cocaine in its base form by combining powder cocaine with water and a base, like sodium bicarbonate (also known as baking soda). Id., at 14. The chemical reaction changes the cocaine hydrochloride molecule into a chemically basic cocaine molecule, Physicians Brief 4, and the resulting solid substance can be cooled and broken into small pieces and then smoked, Commission Report 14. This substance is commonly known as “crack” or “crack cocaine.”2 Alternatively, powder cocaine can be dissolved in water and ammonia (also a base); with the addition of ether, a solid substance—known as “freebase”—separates from the solution, and can be smoked. Id., at 13. As with crack cocaine, freebase contains cocaine in its chemically basic form. Ibid.

Chemically, therefore, there is no difference between the cocaine in coca paste, crack cocaine, and freebase—all are cocaine in its base form. On the other hand, cocaine in its base form and in its salt form (i.e., cocaine hydrochloride) are chemically different, though they have the same active ingredient and produce the same physiological and psychotropic effects. See id., at 14–22. The key difference between them is the method by which they generally enter the body; smoking cocaine in its base form—whether as coca paste, freebase, or crack cocaine—allows the body to absorb the active ingredient quickly, thereby producing a shorter, more intense high than obtained from insufflating cocaine hydrochloride. Ibid.; see generally Kimbrough v. United States, 552 U. S. 85, 94 (2007).

B

In 1986, increasing public concern over the dangers associated with illicit drugs—and the new phenomenon of crack cocaine in particular—prompted Congress to revise the penalties for criminal offenses involving cocainerelated substances. See id., at 95–96. At the time, federal law generally tied the penalties for drug offenses to both the type of drug and the quantity involved, with no provision for mandatory minimum sentences. See, e.g., §841(b)(1) (1982 ed., Supp. III). After holding several hearings specifically addressing the emergence of crack cocaine, Congress enacted the Anti-Drug Abuse Act of 1986 (ADAA), 100 Stat. 3207, which provided mandatory minimum sentences for controlled-substance offenses involving specific quantities of drugs.

As relevant here, the ADAA provided a mandatory 10year sentence for certain drug offenses involving 5 kilograms or more of “a mixture or substance containing a detectable amount of ” various cocaine-related elements, including coca leaves, cocaine, and cocaine salts; it also called for the same sentence for offenses involving only 50 grams or more of “a mixture or substance . . . which contains cocaine base.” ADAA, §1002, 100 Stat. 3207–2 (amending §§841(b)(1)(A)(ii)–(iii)) (emphasis added). The ADAA also stipulated a mandatory 5-year sentence for offenses involving 500 grams of a mixture or substance containing coca leaves, cocaine, and cocaine salts, or 5 grams of a mixture or substance containing “cocaine base.” Id., at 3207–3 (amending §§841(b)(1)(B)(ii)–(iii)).

Thus, the ADAA established a 100-to-1 ratio for the threshold quantities of cocaine-related substances that triggered the statute’s mandatory minimum penalties. That is, 5 grams or more of “a mixture or substance . . . which contains cocaine base” was penalized as severely as 100 times that amount of the other cocaine-related elements enumerated in the statute. These provisions were still in effect at the time of petitioner’s conviction and sentence.3 See §§841(b)(1)(A)–(B) (2000 ed. and Supp. V). The United States Sentencing Commission subsequently promulgated Sentencing Guidelines for drug-trafficking offenses. Under the Guidelines, the offense levels for drug crimes are tied to the drug type and quantity involved. See United States Sentencing Commission, Guidelines Manual §2D1.1(c) (Nov. 2010) (USSG). The Commission originally adopted the ADAA’s 100-to-1 ratio for offenses involving “cocaine” and “cocaine base,” though instead of setting only two quantity thresholds, as the ADAA did, the Guidelines “set sentences for the full range of possible drug quantities.” Commission Report 1; see generally Kimbrough, 552 U. S., at 96–97.4

The original version of §2D1.1(c) did not define “cocaine base” as used in that provision, but in 1993 the Commission issued an amendment to explain that “ ‘[c]ocaine base,’ for the purposes of this guideline, means ‘crack,’ ” that is, “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.” USSG App. C, Amdt. 487 (effective Nov. 1, 1993); see also USSG §2D1.1(c), n. (D). The Commission noted that “forms of cocaine base other than crack (e.g., coca paste . . .) will be treated as cocaine.” USSG App. C, Amdt. 487.5

C In April 2005, petitioner Frantz DePierre sold two bags of drugs to a Government informant. DePierre was subsequently indicted on a charge of distributing 50 grams or more of cocaine base under §§841(a)(1) and (b)(1)(A)(iii).6 At trial, a Government chemist testified that the substance in the bags, which weighed 55.1 grams, was “cocaine base.” Tr. 488, 490. She was not able to identify any sodium bicarbonate. Id., at 499. A police officer testified that the substance in question was “off-white [and] chunky.” Id., at 455.

DePierre asked the District Court to instruct the jury that, in order to find him guilty of distribution of cocaine base, it must find that his offense involved “the form of cocaine base known as crack cocaine.” App. in No. 08– 2101 (CA1), p. 43. His proposed jury instruction defined “crack” identically to the Guidelines definition. See id., at 43–44; see also USSG §2D1.1(c), n. (D). In addition, DePierre asked the court to instruct the jury that “[c]hemical analysis cannot establish a substance as crack because crack is chemically identical to other forms of cocaine base, although it can reveal the presence of sodium bicarbonate, which is usually used in the processing of crack.” App. in No. 08–2101, at 44.

The court, however, instructed the jury that “the statute that’s relevant asks about cocaine base. Crack cocaine is a form of cocaine base, so you’ll tell us whether or not what was involved is cocaine base . . . .” Tr. 585 (paragraph break omitted). The jury form asked whether the offense involved “over 50 grams of cocaine base.” App. to Pet. for Cert. 17a. The jury found DePierre guilty of distributing 50 grams or more of cocaine base, and the court sentenced DePierre to 120 months in prison as required by the statute. The United States Court of Appeals for the First Circuit affirmed, rejecting DePierre’s argument that §841(b)(1)(A)(iii) should be read only to apply to offenses involving crack cocaine. 599 F. 3d 25, 30–31 (2010). While noting the division on this question among the Courts of Appeals, id., at 30–31, and nn. 3, 4, the First Circuit adhered to its own precedent and “read the statute according to its terms,” holding that “ ‘cocaine base’ refers to ‘all forms of cocaine base, including but not limited to crack cocaine.’ ” Id., at 30–31 (quoting United States v. Anderson, 452 F. 3d 66, 86–87 (CA1 2006)). We granted certiorari to resolve the longstanding division in authority among the Courts of Appeals on this question. 562 U. S. ___ (2010).

II

A

We begin with the statutory text. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989). Section 841(b)(1)(A) provides a mandatory 10-year minimum sentence for certain drug offenses involving “(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of—

“(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

“(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

“(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

“(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III); [or] “(iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base.”7

We agree with the Government that the most natural reading of the term “cocaine base” is “cocaine in its base form”—i.e., C17H21NO4, the molecule found in crack cocaine, freebase, and coca paste. On its plain terms, then, “cocaine base” reaches more broadly than just crack cocaine. In arguing to the contrary, DePierre asks us to stray far from the statute’s text, as the term “crack cocaine” appears nowhere in the ADAA (or the United States Code, for that matter). While the Government’s reading is not without its problems,8 that reading follows from the words Congress chose to include in the text. See United States v. Rodriquez, 553 U. S. 377, 384 (2008) (eschewing an interpretation that was “not faithful to the statutory text”). In short, the term “cocaine base” is more plausibly read to mean the “chemically basic form of cocaine,” Brief for United States 15, than it is “crack cocaine,” Brief for Petitioner 24, 28.9

We agree with DePierre that using the term “cocaine base” to refer to C17H21NO4 is technically redundant; as noted earlier, chemically speaking cocaine is a base. If Congress meant in clause (iii) to penalize more severely offenses involving “a mixture or substance . . . which contains” cocaine in its base form it could have simply (and more correctly) used the word “cocaine” instead. But Congress had good reason to use “cocaine base” in the ADAA—to distinguish the substances covered by clause (iii) from other cocaine-related substances. For example, at the time Congress enacted the statute, the word “cocaine” was commonly used to refer to cocaine hydrochloride, i.e., powder cocaine. See, e.g., United States v. Montoya de Hernandez, 473 U. S. 531, 536, 544 (1985) (repeatedly referring to cocaine hydrochloride as “cocaine”); “Crack” Cocaine, Hearing before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 99th Cong., 2d Sess., 94 (1986) (hereinafter Crack Cocaine Hearing) (prepared statement of David L. Westrate, Assistant Administrator, Drug Enforcement Admin., Dept. of Justice) (discussing production of “a white, crystalline powder, cocaine hydrochloride, otherwise known simply as cocaine”).

To make things more confusing, in the scientific and medical literature the word “cocaine” is often used to refer to all cocaine-related substances, including powder cocaine. See, e.g., J. Fay, The Alcohol/Drug Abuse Dictionary and Encyclopedia 26–27 (1988); Weiss et al., Cocaine, at 15–25; R. Lewis, Hawley’s Condensed Chemical Dictionary 317 (15th ed. 2007). Accordingly, Congress’ choice to use the admittedly redundant term “cocaine base” to refer to chemically basic cocaine is best understood as an effort to make clear that clause (iii) does not apply to offenses involving powder cocaine or other nonbasic cocaine-related substances.

B

Notwithstanding DePierre’s arguments to the contrary, reading “cocaine base” to mean chemically basic cocaine is also consistent with §841(b)(1)’s somewhat confounding structure. DePierre is correct that the interpretation we adopt today raises the question why Congress included the word “cocaine” in subclause (II) of clause (ii). That subclause lists “cocaine, its salts, optical and geometric isomers, and salts of isomers” as elements subject to clause (ii)’s higher quantity threshold. §§841(b)(1)(A)(ii)(II), (B)(ii)(II) (emphasis added). If, as we conclude, the terms “cocaine” and “cocaine base” both mean chemically basic cocaine, offenses involving a mixture or substance which contains such cocaine will always be penalized according to the lower quantity thresholds of clause (iii), and never the higher quantity thresholds clause (ii) establishes for mixtures and substances containing “cocaine.”10

While this much is true, we do not agree with DePierre that the word “cocaine” in subclause (II) is therefore superfluous. For without the word “cocaine” subclause (II) makes no sense: It would provide a minimum sentence for offenses involving a specified quantity of simply “its salts, optical and geometric isomers, and salts of isomers.” In light of the structure of the subclause, the word “cocaine” is needed as the reference point for “salts” and “isomers.”

The word “cocaine” in subclause (II) also performs another critical function. Clause (iii) penalizes offenses involving “a mixture or substance described in clause (ii) which contains cocaine base.” §§841(b)(1)(A)(iii), (B)(iii) (emphasis added). In other words, clause (ii) imposes a penalty for offenses involving cocaine-related substances generally, and clause (iii) imposes a higher penalty for a subset of those substances—the ones that “contai[n] cocaine base.” For this structure to work, however, §841(b)(1) must “describ[e] in clause (ii)” substances containing chemically basic cocaine, which then comprise the subset described in clause (iii). If such substances were not present in clause (ii), clause (iii) would only apply to substances that contain both chemically basic cocaine and one of the other elements enumerated in clause (ii). Presumably, the result would be that clause (iii) would not apply to crack cocaine, freebase, or coca paste offenses, as there is no indication that, in addition to “cocaine base” (i.e., C17H21NO4), those substances contain cocaine “salts” (e.g., cocaine hydrochloride), ecgonine, or any of the other elements enumerated in clause (ii). In short, the exclusion of “cocaine” from clause (ii) would result in clause (iii) effectively describing a null set, which obviously was not Congress’ intent.

Of course, this redundancy could have been avoided by simply drafting clause (iii) to penalize offenses involving “a mixture or substance which contains cocaine base,” without reference to clause (ii)—that is, Congress could have drafted clause (iii) to specify a separate set of cocainerelated substances, not a subset of those in clause (ii). That we may rue inartful legislative drafting, however, does not excuse us from the responsibility of construing a statute as faithfully as possible to its actual text.11 And as noted earlier, there is no textual support for DePierre’s interpretation of “cocaine base” to mean “crack cocaine.”

We also recognize that our reading of “cocaine” in subclause (II) and “cocaine base” in clause (iii) to both refer to chemically basic cocaine is in tension with the usual rule that “when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” Sosa v. Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004) (internal quotation marks omitted). However, because “Congress sometimes uses slightly different language to convey the same message,” Deal v. United States, 508 U. S. 129, 134 (1993) (internal quotation marks omitted), we must be careful not to place too much emphasis on the marginal semantic divergence between the terms “cocaine” and “cocaine base.” As we have already explained, Congress had good reason to employ the latter term in clause (iii), and the slight inconsistency in nomenclature is insufficient reason to adopt DePierre’s interpretation. Cf. Public Lands Council v. Babbitt, 529 U. S. 728, 746–747 (2000) (suggesting that a “statute’s basic purpose” might support the conclusion that “two sets of different words mean the same thing”).

III

DePierre offers four additional arguments in support of his view that the term “cocaine base” in clause (iii) is best read to mean “crack cocaine.” We do not find them convincing.

A

DePierre first argues that we should read “cocaine base” to mean “crack cocaine” because, in passing the ADAA, Congress in 1986 intended to penalize crack cocaine offenses more severely than those involving other substances containing C17H21NO4. As is evident from the preceding discussion, this position is not supported by the statutory text. To be sure, the records of the contemporaneous congressional hearings suggest that Congress was most concerned with the particular dangers posed by the advent of crack cocaine. See, e.g., Crack Cocaine Hearing 1 (statement of Chairman Roth) (“[We] mee[t] today to examine a frightening and dangerous new twist in the drug abuse problem—the growing availability and use of a cheap, highly addictive, and deadly form of cocaine known on the streets as ‘crack’ ”); see generally Commission Report 116–118; Kimbrough, 552 U. S., at 95–96.

It does not necessarily follow, however, that in passing the ADAA Congress meant for clause (iii)’s lower quantity thresholds to apply exclusively to crack cocaine offenses. Numerous witnesses at the hearings testified that the primary reason crack cocaine was so dangerous was because—contrary to powder cocaine—cocaine in its base form is smoked, which was understood to produce a faster, more intense, and more addictive high than powder cocaine. See, e.g., Crack Cocaine Hearing 20 (statement of Dr. Robert Byck, Yale University School of Medicine) (stating that the ability to inhale vapor “is the reason why crack, or cocaine free-base, is so dangerous”). This is not, however, a feature unique to crack cocaine, and freebase and coca paste were also acknowledged as dangerous, smokeable forms of cocaine. See, e.g., id., at 70 (prepared statement of Dr. Charles R. Schuster, Director, National Institute on Drug Abuse) (reporting on the shift from snorting powder cocaine to “newer more dangerous routes of administration, such as freebase smoking”); id., at 19– 20 (statement of Dr. Byck) (describing the damaging effects of cocaine smoking on people in Peru).

Moreover, the testimony of witnesses before Congress did not clearly distinguish between these base forms of cocaine; witnesses repeatedly used terms like “cocaine base,” “freebase,” or “cocaine freebase” in a manner that grouped crack cocaine with other substances containing chemically basic forms of cocaine. See, e.g., Trafficking and Abuse of “Crack” in New York City, House Select Committee on Narcotics Abuse and Control, 99th Cong., 2d Sess., 258 (1986) (statement of Robert M. Stutman, Special Agent in Charge, Drug Enforcement Admin., Dept. of Justice) (“[C]ocaine in its alkaloid form [is] commonly known on the street as crack, rock, base, or freebase”); Crack Cocaine Hearing 71 (statement of Dr. Schuster) (“In other words, ‘crack’ is a street name for cocaine freebase”). In fact, prior to passage of the ADAA, multiple bills were introduced in Congress that imposed enhanced penalties on those who trafficked in “cocaine base,” e.g., S. 2787, 99th Cong., 2d Sess., §1 (1986), as well as “cocaine freebase,” e.g., H. R. 5394, 99th Cong., 2d Sess., §101 (1986); H. R. 5484, 99th Cong., 2d Sess., §608(a) (1986).

Given crack cocaine’s sudden emergence and the similarities it shared with other forms of cocaine, this lack of clarity is understandable, as is Congress’ desire to adopt a statutory term that would encompass all forms. Congress faced what it perceived to be a new threat of massive scope. See, e.g., Crack Cocaine Hearing 4 (statement of Sen. Nunn) (“[C]ocaine use, particularly in the more pure form known as crack, is at near epidemic proportions”); id., at 21 (statement of Dr. Byck) (“We are dealing with a worse drug . . . than we have ever dealt with, or that anybody has ever dealt with in history”). Accordingly, Congress chose statutory language broad enough to meet that threat. As we have noted, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998). In the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penalties, we cannot adopt DePierre’s narrow construction. See Lewis v. Chicago, 560 U. S. ___, ___ (2010) (slip op., at 9) (“It is not for us to rewrite [a] statute so that it covers only what we think is necessary to achieve what we think Congress really intended”).

B

DePierre also argues that we should read the term “cocaine base” to mean “crack cocaine,” rather than chemically basic cocaine, because the latter definition leads to an absurd result. Cf. EEOC v. Commercial Office Products Co., 486 U. S. 107, 120 (1988) (plurality opinion). He contends that, because coca leaves themselves contain cocaine, under the Government’s approach an offense involving 5 grams of coca leaves will be subject to the 5year minimum sentence in §841(b)(1)(B)(iii), even though those leaves would produce only .05 grams of smokeable cocaine. See Brief for Petitioner 41–42. While we agree that it would be questionable to treat 5 grams of coca leaves as equivalent to 500 grams of powder cocaine for minimumsentence purposes, we are not persuaded that such a result would actually obtain in light of our decision today.

To begin with, it is a matter of dispute between the parties whether coca leaves in their natural, unprocessed form actually contain chemically basic cocaine. Compare Brief for Petitioner 15, 17, n. 10, with Brief for United States 43. Even assuming that DePierre is correct as a matter of chemistry that coca leaves contain cocaine in its base form,12 see Physicians Brief 2, 11, the Government has averred that it “would not be able to make that showing in court,” Tr. of Oral Arg. 27, and that “coca leaves should not be treated as containing ‘cocaine base’ for purposes of Clause (iii),” Brief for United States 45.

It is unsurprising, therefore, that the Government in its brief disclaimed awareness of any prosecution in which it had sought, or the defendant had received, a statutoryminimum sentence enhanced under clause (iii) for an offense involving coca leaves. Id., at 44. And although this question is not before us today, we note that Congress’ deliberate choice to enumerate “coca leaves” in clause (ii) strongly indicates its intent that offenses involving such leaves be subject to the higher quantity thresholds of that clause. Accordingly, there is little danger that the statute will be read in the “absurd” manner DePierre fears.

C

In addition, DePierre suggests that because the Sentencing Commission has, since 1993, defined “cocaine base” to mean “crack” for the purposes of the Federal Sentencing Guidelines, we should do the same with respect to §841(b)(1). We do not agree. We have never held that, when interpreting a term in a criminal statute, deference is warranted to the Sentencing Commission’s definition of the same term in the Guidelines. Cf. Neal v. United States, 516 U. S. 284, 290–296 (1996). And we need not decide now whether such deference would be appropriate, because the Guidelines do not purport to interpret §841(b)(1). See USSG §2D1.1(c), n. (D) (“ ‘Cocaine base,’ for the purposes of this guideline, means ‘crack’ ” (emphasis added)).13

We recognize that, because the definition of “cocaine base” in clause (iii) differs from the Guidelines definition, certain sentencing anomalies may result. For example, an offense involving 5 grams of crack cocaine and one involving 5 grams of coca paste both trigger a minimum 5year sentence under §841(b)(1)(B)(iii). But defendants convicted of offenses involving only 4 grams of each substance—which do not trigger the statutory minimums— would likely receive different sentences, because of the Guidelines’ differential treatment of those substances with respect to offense level.14 Compare USSG §2D1.1(c)(9) (providing an offense level of 22 for at least 4 grams of “cocaine base,” i.e., “crack”) with §2D1.1(c)(14) (providing an offense level of 12 for less than 25 grams of “cocaine,” which, under the Guidelines, includes coca paste). As we have noted in previous opinions, however, such disparities are the inevitable result of the dissimilar operation of the fixed minimum sentences Congress has provided by statute and the graduated sentencing scheme established by the Guidelines. See Kimbrough, 552 U. S., at 107–108; Neal, 516 U. S., at 291–292. Accordingly, we reject DePierre’s suggestion that the term “cocaine base” as used in clause (iii) must be given the same definition as it has under the Guidelines.

D

Finally, DePierre argues that, because §841(b)(1) is at the very least ambiguous, the rule of lenity requires us to interpret the statute in his favor. See United States v. Santos, 553 U. S. 507, 514 (2008) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them”). As evinced by the preceding discussion, we cannot say that the statute is crystalline. The rule, however, is reserved for cases where, “after seizing everything from which aid can be derived, the Court is left with an ambiguous statute.” Smith v. United States, 508 U. S. 223, 239 (1993) (internal quotation marks and alterations omitted). Applying the normal rules of statutory construction in this case, it is clear that Congress used the term “cocaine base” in clause (iii) to penalize more severely not only offenses involving “crack cocaine,” but those involving substances containing chemically basic cocaine more generally. There is no persuasive justification for reading the statute otherwise. Because the statutory text allows us to make far more than “a guess as to what Congress intended,” Reno v. Koray, 515 U. S. 50, 65 (1995) (internal quotation marks omitted), the rule of lenity does not apply in DePierre’s favor.

* * *

We hold that the term “cocaine base” as used in §841(b)(1) means not just “crack cocaine,” but cocaine in its chemically basic form. We therefore affirm the judgment of the Court of Appeals. It is so ordered.

1 There are more detailed theories of how acids and bases interact. For our purposes, it is sufficient to note the fundamental proposition that a base and an acid can combine to form a salt, and all three are different types of compounds. See generally Brief for Individual Physicians and Scientists as Amici Curiae 8; A Dictionary of Chemistry 6–7, 62–63, 496 (J. Dainith ed., 5th ed. 2004).

2 Though the terms “crack” and “crack cocaine” are interchangeable, in this opinion we adopt DePierre’s practice and generally employ the latter.

3 Due to a recent amendment, the quantity ratio in §841(b)(1) is now roughly 18-to-1, but otherwise the relevant statutory provisions are unchanged from those in effect at the time DePierre was sentenced. See Fair Sentencing Act of 2010 (FSA), §2, 124 Stat. 2372 (changing the quantity in §841(b)(1)(A)(iii) from 50 to 280 grams and in subparagraph (B)(iii) from 5 to 28 grams).

4 In 2007 the Commission increased the quantity of cocaine base required to trigger each offense level, reducing the cocaine base-to-cocaine sentencing ratio under the Guidelines. See USSG Supp. App. C, Amdt. 706 (effective Nov. 1, 2007). Unless otherwise noted, we cite to the current versions of the relevant Guidelines provisions.

5 The Guidelines’ Drug Quantity Table only lists “cocaine” and “cocaine base” among its enumerated controlled substances, but the application notes make clear that the term “cocaine” includes “ecgonine and coca leaves,” as well as “salts, isomers, and salts of isomers” of cocaine. §2D1.1(c), and comment., n. 5.

6 DePierre was also indicted for distribution of powder cocaine under §841(a)(1) and possession of a firearm with an obliterated serial number under 18 U. S. C. §922(k). He was convicted by jury of the former offense and pleaded guilty to the latter prior to trial.

7 As noted earlier, §841(b)(1)(B) calls for a mandatory minimum 5year sentence for offenses involving exactly the same substances; the only difference in subparagraph (B) is that the threshold quantity in clause (ii) is 500 grams, and in clause (iii) it is 5 grams. Because the 100-to-1 ratio is a feature of both §§841(b)(1)(A) and (B), and those subparagraphs are identical in all other respects, throughout this opinion we use the terms “clause (ii)” and “clause (iii)” to refer to those clauses as present in either subparagraph.

8 The Government urges us to give “cocaine base” its “settled, unambiguous scientific meaning,” i.e., “the form of cocaine classified chemically as a base, with the chemical formula C17H21NO4 and a particular molecular structure.” Brief for United States 20; cf. McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 342 (1991) (“In the absence of contrary indication, we assume that when a statute uses . . . a term [of art], Congress intended it to have its established meaning”). But the scientifically proper appellation for C17H21NO4 is “cocaine” tout court, and the Government cites no source that uses “cocaine base” to refer to C17H21NO4 (save lower-court opinions construing the statute at issue in this case). Therefore, there is no “settled meaning”—scientific or otherwise—of “cocaine base” for us to apply to §841(b)(1).

9 The statute itself gives us good reason to reject DePierre’s reading. Substituting “crack cocaine” for “cocaine base” would mean that clause (iii) only applies to a “mixture or substance . . . which contains [crack cocaine].” But crack cocaine is itself a “substance” involved in drug offenses; it is the end product that is bought, sold, and consumed. We are aware of no substance that “contains” crack cocaine.

10 DePierre makes a similar argument with respect to coca leaves: Because they contain chemically basic cocaine, he contends, under the Government’s interpretation offenses involving coca leaves will never be subject to the lower quantity threshold associated with subclause (I), rendering that provision superfluous. For reasons discussed later, see infra, at 15–16, we are not convinced.

11 At the time the ADAA was enacted, the definition of “narcotic drug” in the same subchapter of the United States Code included, as relevant, the following: “(C) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed. “(D) Cocaine, its salts, optical and geometric isomers, and salts of isomers. “(E) Ecgonine, its derivatives, their salts, isomers, and salts of isomers. “(F) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in [the preceding] subparagraphs . . . . ” 21 U. S. C. §802(17) (1982 ed., Supp. III). Accordingly, the likely explanation for the ADAA’s curious structure is that Congress simply adopted this preexisting enumeration of cocainerelated controlled substances, and then engrafted clause (iii) to provide enhanced penalties for the subset of offenses involving chemically basic cocaine.

12 It appears that Congress itself is of the view that coca leaves contain “cocaine,” as subclause (I) exempts offenses involving “coca leaves from which cocaine . . . ha[s] been removed.” §§841(b)(1)(A)(ii)(I), (B)(ii)(I).

13 We also disagree with DePierre’s contention that Congress’ failure to reject the Guidelines definition of “cocaine base” means that it has effectively adopted that interpretation with respect to the statute. See Kimbrough v. United States, 552 U. S. 85, 106 (2007) (“Ordinarily, we resist reading congressional intent into congressional inaction”).

14 In defining “cocaine base” as “crack,” the Commission explained that “forms of cocaine base other than crack” are treated as “cocaine” for purposes of the Guidelines. USSG App. C, Amdt. 487 (effective Nov. 1, 1993). This includes coca paste, which the Commission described as “an intermediate step in the processing of coca leaves into cocaine hydrochloride.” Ibid. As we have explained, however, coca paste is a smokeable form of cocaine in its own right, and we see no reason why, as a statutory matter, it should be subject to lesser penalties than crack or freebase.

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–1533

_________________

FRANTZ DEPIERRE, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[June 9, 2011]

JUSTICE SCALIA, concurring in part and concurring in the judgment.

I concur in the Court’s judgment and in all of its opinion except for Part III–A, which needlessly contradicts DePierre’s version of legislative history. Our holding today is that the statutory term “cocaine base” refers to cocaine base, rather than, as DePierre contends, one particular type of cocaine base. This holding is in my view obvious, and the Court does not disagree. It begins its discussion of the legislative history by saying that DePierre’s position “is not supported by the statutory text,” ante, at 13; and ends the discussion by saying that “[i]n the absence of any indication in the statutory text that Congress intended only to subject crack cocaine offenses to enhanced penalties, we cannot adopt DePierre’s narrow construction,” ante, at 15.

Everything in-between could and should have been omitted. Even if Dr. Byck had not lectured an undetermined number of likely somnolent Congressmen on “the damaging effects of cocaine smoking on people in Peru,” ante, at 14, we would still hold that the words “cocaine base” mean cocaine base. And here, as always, the needless detour into legislative history is not harmless. It conveys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this. In fact, however, even a hypothetical House Report expressing the Committee’s misunderstanding (or perhaps just the Committee staff’s misunderstanding, who knows?) that “cocaine base means crack cocaine” could not have changed the outcome of today’s opinion.

Print this transcript Transcript: 

ORAL ARGUMENT OF ANDREW J. PINCUS ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-1533, DePierre v. United States.

Mr. Pincus.

Mr. Pincus: Thank you, Mr. Chief Justice, and may it please the Court:

The question in this case is whether the dramatically harsher mandatory minimum penalty for what the statute terms cocaine base applies to all offenses involving cocaine or only those involving substances with the characteristics of crack cocaine.

In its brief in the Kimbrough case, the government described the provision at issue here as reflecting Congress's determination that, and I'm quoting,

"crimes involving crack should be subject to considerably more severe penalties. "

We agree.

Congress's targeting of a limited subset of the substances qualifying chemically as -- as cocaine is manifest in the statutory structure, in the language, for three basic reasons.

And I'm going to be looking at page 2 of our blue brief, which has the relevant statutory provision.

First, the only way to give different meaning to two distinct terms that Congress used in the statute -- "cocaine" on the one hand and "cocaine base" on the other -- is to make clear that cocaine base means something different than all substances with the chemical formula [C17H21NO4.]

Justice Elena Kagan: Mr. Pincus, if -- if I understand your interpretation correctly, it would exclude freebase.

How is that a sensible interpretation of the statute, one that would exclude freebase, a commonly known substance?

Congress was aware of it.

The Richard Pryor incident had occurred.

Everybody knew it was dangerous.

Wasn't it at least true that Congress meant to incorporate that substance as well?

Mr. Pincus: Let me answer -- answer your question with a little bit of detail, Justice Kagan, because I think our reply brief wasn't as clear as it might have been, because the word "freebase" has, really, three different meanings.

It means a manufacturing process; it means a method of use of a cocaine-related substance; and it also means a substance.

So just to be clear: Freebase, the manufacturing process, occurs when cocaine hydrochloride, the powder form of cocaine, is mixed with ether and ammonia in a very volatile mixture and boiled.

Most -- many users of freebase inhale the fumes that are released during that manufacturing process.

That process is very dangerous, as the Richard Pryor incident showed, because the substance is quite volatile and will explode.

If that process -- if the substance is not used then, but goes to the very end, when all of the liquids are boiled off, then it does produce a rock-like substance similar to crack cocaine.

Our submission is that the -- if the substance is permitted to go to the end, and if, in effect, ether and ammonia are used as a substitute for sodium bicarbonate, then the substance does qualify under the statute, because it is a rock-like substance that has -- is chemically cocaine, and was produced in a method similar to the reacting of sodium bicarbonate with baking soda.

But in -- when the process is in the middle of the production process, we don't think Congress meant to reach that for a couple of reasons.

First of all, because that was -- is -- that substance is not something that's easily marketable.

And one of the key things that Congress was concerned about was the marketability of crack cocaine in its rock-like form.

That's what made the really big difference.

Justice Ruth Bader Ginsburg: Mr. Pincus, if the -- the substance that is involved in this case was a rock-like substance and it wasn't a powder.

So why doesn't it belong?

It's a rock-like substance.

Why should it be outside the category cocaine base?

Mr. Pincus: Well, I think there would be a factual question in this case.

None of the courts below, Justice Ginsburg, determined whether, in fact, this -- the substance at issue in this case was crack cocaine, because the district court ruled that that wasn't necessary, that all chemical -- as long as the substance chemically qualified as cocaine, it satisfied the statutory requirement, and the First Circuit agreed.

So in this case, there--

Justice Ruth Bader Ginsburg: Correct me if am I wrong about this -- I may have a misimpression -- but I thought you were objecting to a charge to the jury that charged cocaine base and didn't charge crack.

Mr. Pincus: --We're -- we're objecting to the -- the fact that the district judge charged the jury and himself determined that in order for this very severe 100-to-1 penalty to apply, it was not necessary for the substance to qualify as crack cocaine.

All it had to do was to be a chemical form of cocaine.

Justice Samuel Alito: If we agree with you, how should a judge instruct a jury to determine whether a substance is crack?

Should the judge use the definition in the sentencing guidelines?

Mr. Pincus: A judge could use the definition in the sentencing guidelines, Your Honor.

Let me just say, as a threshold question, in many cases this won't be a jury question.

Justice Samuel Alito: But in those--

Mr. Pincus: In those cases, we think there are three -- there are three elements.

One is the substance has to qualify chemically as cocaine.

The second is it was prepared by processing cocaine hydrochloride with sodium bicarbonate or with a different reactant that produces a similar chemical effect.

And third, that it's a rock-like or otherwise solid, that is smokeable, that is able to produce the inhalable vapors.

We think those are the key--

Justice Samuel Alito: --It has to have all three of those characteristics?

Mr. Pincus: --All three of those characteristics.

Justice Samuel Alito: But I thought you just said that freebase would qualify, and freebase would not have the second of those characteristics; isn't that right?

It was -- it would not be prepared using a base?

Mr. Pincus: It would, because ammonia is one of the -- is one of -- it's ammonia and ether that have -- that are used to prepare freebase.

Justice Samuel Alito: So if it had any base?

Mr. Pincus: Any base.

We are -- the lower courts, in applying the sentencing guidelines definition, have said that sodium bicarbonate is not required.

We think it is not required.

They've recognized other substances, and we think as long as the process is similar, that that's what the sentencing guidelines capture, that's what the statute captures.

Justice Antonin Scalia: I don't understand that.

I can understand the argument that -- that Congress was -- was directing its statute at crack, and crack had -- had a very definite meaning, which didn't include any substance that -- that is rock-hard and has been produced in the manner you suggest.

You're coming up -- you're urging upon us a definition that neither is the definition of crack nor is the chemical definition of cocaine base.

It's neither fish nor fowl.

Mr. Pincus: Well, respectfully, Justice Scalia, I think that Congress was focused on crack.

Justice Antonin Scalia: Crack.

Mr. Pincus: Because it -- because it was a substance that had particular characteristics.

Justice Antonin Scalia: That's right.

But you don't argue that.

That's not the meaning you want us to give it.

Mr. Pincus: Well, we do -- we do want the meaning to be a substance with those particular characteristics.

I think the only question that we're -- that we're debating is whether baking -- the use of baking soda is essential, because all of those other -- those other three characteristics are characteristics of crack.

Justice Antonin Scalia: It's essential to crack.

Mr. Pincus: Well--

Justice Antonin Scalia: You wouldn't call it crack if it weren't made that way, would you?

Mr. Pincus: --Well, I think in 1986, the definitions were not that clear.

And I think the sentencing commission has said, and certainly the lower courts have said, both in applying the limited definition of the statute for which we contend and also in interpreting the sentencing guidelines, that the use of a different base gets at what Congress -- is still a category of substance that Congress -- Congress cared about.

Obviously, if the Court would like to construe the statute more narrowly and say baking soda is required, we wouldn't object to that.

But we think that Congress -- one of the reasons that Congress used the term "cocaine base" was that it was trying to capture a category of substances that had particular characteristics and wasn't focused so much on the exact chemical formula that went into it, because Congress knew, in the drug area, it would--

Justice Antonin Scalia: How does "cocaine base" suggest what you want?

It has to be -- it has to be rock and it has to be base cocaine produced in one of the fashions you suggested.

I don't know how "cocaine base" remotely suggests that.

Mr. Pincus: --Well, I think in -- in three ways, Your Honor.

First of all, because Congress didn't use the term "cocaine", which is used elsewhere in the provision, it clearly meant a subset.

It didn't mean all of the -- all of the substances with the chemical formula that satisfies the chemical term "cocaine".

Second of all, the statute shows just by the 100-to-1 ratio that Congress was focused on something that was especially dangerous, much more dangerous than powder.

Third, the legislative context was, as the Court said in Kimbrough, that this was a statute that was enacted in response to a particular problem, and I think the question we're debating is: Would Congress have said, when it defined the term -- when it defined the term "cocaine base" -- and I should say, "base" was one of the street terms, colloquial terms, that was used at the time to -- to describe these categories of substances.

Justice Antonin Scalia: All of them or just crack?

Mr. Pincus: It was -- "freebase" was a word.

"Base" was a word.

"Crack" was a word.

The -- the legislative debate didn't distinguish necessarily the chemical -- the chemical process for creating the substance.

What it focused on was a substance that had characteristics that had led to the epidemic that Congress was concerned with, and those characteristics were easy marketability, because it was a solid, incredibly strong addictive potential, and inhalability.

Chief Justice John G. Roberts: Counsel, the provision refers to

"a mixture or substance which contains cocaine base. "

You read cocaine base to be crack, so you have to be talking about a mixture or substance which contains crack.

What contains crack?

Crack is the problem they're getting at; yet the statute, as you read it, has to talk about a substance which contains crack, not just crack.

Mr. Pincus: Yes, Your Honor, and we think the reason that Congress used that phrase was often in this reactive process at the end of the day the rock will not be pure cocaine in a rock form.

There may be some cocaine hydrochloride that didn't react with the base.

There may be -- then there often is some of the base reacting--

Chief Justice John G. Roberts: It's kind of an odd way for Congress -- it's an odd way for Congress to phrase the provision if what they want to get at is crack, to say what we want to get at is substance which contained crack.

That suggests to me, when you talk about substances that contain something, what they contain is a base that then is used in the substance.

I think that's a harder, harder logic to apply when you're talking about crack.

They want to stop the use of crack, not so much -- it wouldn't occur naturally that they're talking about substances which contain crack.

It would occur naturally, that language formulation, if you think of cocaine base as broader than just crack.

Mr. Pincus: --Respectfully, I disagree, Mr. Chief Justice.

The provision just above large Roman numeral IV talks about compounds and mixtures, and Congress is sensitive in crafting the drug laws that often, because these substances are not prepared in a chemistry lab, there are many, many impurities associated with them.

For example, even cocaine hydrochloride, cocaine powder, is not pure cocaine hydrochloride.

It's often diluted, it's often cut with other impurities.

And so in all -- throughout the drug laws Congress has used that and we think that's exactly why it used a similar phrase here, because the crack rock does not contain 100 percent chemical cocaine in a rock-like form.

There will be cocaine powder often, cocaine hydrochloride left.

There will be baking soda left or the other reactant, and so it will be a mass of substances, and Congress needed that language to avoid defendants saying: This substance is not 100 percent cocaine in a crack form and therefore I don't qualify under (iii).

Chief Justice John G. Roberts: You kind of elided the point there in your verbal formulation.

It's easier to say this is something that's not just cocaine.

It's harder to say this is something which is not just crack because crack is a type of cocaine.

You can say it contains, as the government says, cocaine base.

Mr. Pincus: I may be missing your point, Your Honor, but I think even cocaine in a crack form has other -- the rock that Congress was trying to get at has other things in it.

Chief Justice John G. Roberts: And you're saying Congress is afraid that the sodium bicarbonate, we might not be able to get at that if we just say crack?

Mr. Pincus: No, that the defendant, that the defendant would say this -- if it doesn't, if it didn't say a mixture which contains, if it said cocaine base, then the argument might well be, you have to -- you have to distill the substance to find out how much cocaine base is actually in it, as opposed to how much of it actually is cocaine in a rock form, as opposed to other things have been mixed in, instead of, as this Court decided in Chapman, it's the whole package that one weighs.

And so I think Congress was getting at the idea that it didn't want people to either avoid the falling within clause (iii) entirely or trying to escape the 50-gram crack threshold by saying there are other things in here that you have to take out before you, before you can impose this penalty on me.

Justice Sonia Sotomayor: Counsel--

Justice Samuel Alito: Other than crack and free base, are there other forms of cocaine base that are actually in use in any substantial amounts in this country by drug users?

Mr. Pincus: Well, I think we don't know, Your Honor.

There are -- certainly cocaine leaves can be in the country, and under the government's definition of the statute cocaine leaves would qualify under clause (iii).

Cocoa paste -- coca paste can be imported into the country.

There are cases like that.

Justice Samuel Alito: Are there actually people in the United States who are smoking coca, coca paste?

I thought that that was exclusive to South America.

Mr. Pincus: They may not be smoking it, Your Honor, but they may be bringing it into the country in that form and then converting it into--

Justice Samuel Alito: Are you aware of cases where that's happened?

Mr. Pincus: --There are -- the case that we point to regarding the cocaine that was intermingled in luggage and in the fiberglass of a flowerpot are both cases where it was not cocaine hydrochloride, it was cocaine.

So it was either coca paste or some later, more distilled form of chemical cocaine as opposed to cocaine hydrochloride, but it was not in a rock form, and I think--

Justice Samuel Alito: To go back to your definition of crack, just so I'm clear on it, if a substance -- in the second prong of your definition, if a substance is tested and chemically it is pure [C17H21NO4,] no trace of sodium bicarbonate, no trace of ammonium, is it possible for a defendant to be convicted and given the crack penalty?

Mr. Pincus: --Yes, it is, Your Honor.

There are cases applying the sentencing guideline test, which is a similar test, in which the courts have said the absence -- I think what you're getting at is if the reactant is not present?

Justice Samuel Alito: That's right.

And I don't think -- could you just reiterate what the second prong of your test is because I thought -- I was under the impression it required the presence of a reactant.

Mr. Pincus: It is that it was prepared by processing sodium hydrochloride with a base or with baking soda or similar reactant.

Justice Elena Kagan: That means prepared from the powder, in theory--

Mr. Pincus: Prepared from--

Justice Elena Kagan: --is that right?

Mr. Pincus: --cocaine powder, yes.

Justice Samuel Alito: So you need extrinsic evidence about how this particular substance was prepared in order to satisfy it?

If you don't have the trace elements of the reactant, you need evidence that that's how this was made?

Mr. Pincus: Your Honor, the courts have not required -- the courts applying the sentencing guidelines have said that a chemist can testify based on his knowledge, and they've found the sentencing guidelines satisfied, that in his professional opinion that's how this substance was prepared.

Justice Elena Kagan: Would it be enough for you if it had the right chemical definition and it was a rock-like substance, just those two things?

Would that be enough?

If the government could show it has the right chemical definition, it's rock-like, it's solid, does it have to show anything else?

Mr. Pincus: I think that the element of the sentencing guidelines which we're picking up in our second element, Your Honor, is useful in making clear that this is a substance that was -- went from cocaine hydrochloride back to cocaine base, because I think that's one of the--

Justice Elena Kagan: I'm asking the same kind of question that Justice Alito is asking, whether the government has to show anything particular to demonstrate that it was prepared from powder cocaine.

Mr. Pincus: --I think that the government doesn't have to produce -- doesn't have to make a physical showing.

It can -- it is enough for the government's chemist -- and there's always a chemist that testifies in these cases -- to say in his opinion that's true.

I think -- I think as a fallback we would certainly be happy with the definition that just had the first and the third ingredients in what I've said, but I think the second is important because one of the things that Congress was focused on was the potency of the crack and crack-like substance.

Justice Antonin Scalia: Mr. Pincus, you've lost me.

You've responded to the Chief Justice when he raised the problem that this has to be not just cocaine base, it has to be a mixture containing cocaine base, you responded to him by saying: Well, crack always has some mixture in it; it's never -- it's never pure; and that's why crack would be covered.

But in response to Justice Alito, who asked you what if it's pure, if it's pure cocaine base, without any admixtures, you said that would still be covered.

I mean, both answers can't be right.

Mr. Pincus: I may have misspoken in my response to the Chief Justice, Justice Scalia.

I thought the Chief Justice's question was that the formulation of a mixture or substance which contains--

Justice Antonin Scalia: Yes.

Mr. Pincus: --somehow meant that Congress was getting at the chemical, all chemical forms of cocaine because -- because that formulation was more sympathetic than thinking that it required a rock-like substance.

And in responding to the Chief Justice, all I was trying to say was not that it was always true, that there are other things present, but just that it is often is true that there are other things present and that Congress's use of the word 100 percent cocaine in its chemical form and therefore I'm not covered by clause (iii).

Justice Sonia Sotomayor: --Counsel--

Mr. Pincus: I think the question here is -- I'm sorry, Your Honor -- is the converse of that question, which is: But if it is 100 percent cocaine in its chemical form in a rock-like state, is that covered too, and I'm just trying to say: Yes, that's certainly covered, too, but so is the dirtier form of a rock that has other things mixed in.

Justice Samuel Alito: What if it's pulverized?

I don't know whether that's possible, but could you grind it up so that it's not rock-like anymore, so it's like a powder--

Mr. Pincus: I think--

Justice Samuel Alito: --and smoke it after it's in that form?

Mr. Pincus: --Your Honor, I think our view -- that's one of the reasons that we would say rock-like or a solid that is otherwise smokeable, to deal with people saying: Oh, if it doesn't have to be a rock I'll pulverize it.

Even if it's tiny little rocks, if it still has the smokeability characteristic, which is what Congress was focused on, we think that that would be -- that that would be sufficient.

Justice Sonia Sotomayor: --Can you get cocaine into a rock form without using a base?

Is there some way that the rock type form of cocaine could ever be achieved without a use of a base?

Mr. Pincus: No, I don't believe so, Your Honor.

Justice Sonia Sotomayor: And coca paste, what can you do with coca paste?

Can you make it into powder or is it only useable as a -- ultimately for a rock-like formation?

Mr. Pincus: Coca paste is -- is the intermediate step for all downline products.

Coca leaves are mashed up in kerosene and other things and they're -- through a process.

They are -- the first step is to convert them into coca paste, which is this sort of mushy brown substance with many, many impurities in it.

It then typically is subject to subsequent processing which turns it into cocaine hydrochloride, colloquially cocaine powder.

And then the way -- the way that crack is produced is that cocaine powder is turned back, using the process we've been talking about, into chemically cocaine in this rock-like form.

Justice Anthony Kennedy: You mentioned leaves several times, and you talked about that in your -- in your brief.

If this were a trial court and we had two world-class chemists, strictly from a chemical standpoint wouldn't they tell you that the cocaine in a leaf is in a salt form, not a base form?

Mr. Pincus: I -- I don't think they would, Your Honor.

We -- we talk in our -- in our brief, we cite a number of studies that have found that cocaine is present in the leaf in both the salt and the chemically basic form, and I -- I think that the study -- we explain in detail why the government study, which is a little -- the principal study they rely on is about 125 years old -- doesn't capture the new learning--

Justice Anthony Kennedy: Does that depend on the age of the leaf or if it's been in the sun or is--

Mr. Pincus: --No, I think it's just -- you know, different leaves have different characteristics.

The mix will be different.

But -- but as a -- a matter of the chemical composition, there will be some cocaine in its chemical form and there will be some cocaine salt in the leaves, and I -- I think even more important, Congress believed that.

So--

Justice Anthony Kennedy: --No, no, no, no.

Mr. Pincus: --Yes.

Justice Anthony Kennedy: I thought that the chemists said that it's always a salt.

And you--

Mr. Pincus: No, Your Honor.

Justice Anthony Kennedy: --I thought that was the government's position, that it's a salt.

Mr. Pincus: That is the government's position, Your Honor.

But -- but on page--

Justice Anthony Kennedy: But you ended by saying oh, sometimes it's a salt.

Mr. Pincus: --Our position is that within the leaf, there is both -- there -- both forms coexist in -- in the natural state; that there is both the salt form and the form that is chemically cocaine, and the studies that we cite on pages 9 and 10 and in the footnotes on that page I think were very clear.

Early on the processes for extracting from the leaf made it difficult to tell whether the extraction process had made it into a salt or whether there was actual chemical cocaine in the leaf.

More modern processes make clear that there are both forms in the leaf.

And--

Justice Antonin Scalia: As a practical matter what difference does it make?

Is the government going to be prosecuting anybody for possessing coca leaves?

Mr. Pincus: --They say they're not, Your Honor.

I think the reason it makes a difference is for the interpretation of what Congress meant, because--

Justice Antonin Scalia: I don't think Congress knew what this chemical debate was all about.

I -- I think it's very unlikely.

Mr. Pincus: --Well, Your Honor--

Justice Antonin Scalia: Let's assume that the government's right and -- or that you're right.

And that it's -- no, let's assume the government's right, and it is -- no, you say it's base.

Mr. Pincus: --We say it's both.

Justice Antonin Scalia: You say it's both, but it includes base.

Mr. Pincus: Yes.

Both base--

Justice Antonin Scalia: And let's assume you're right.

So what?

Mr. Pincus: --I think then that would mean that the -- the -- under the government's interpretation of the statute, offenses involving leaves, as long as there were more than 50 grams of them, would fall within clause III, and that doesn't make any sense.

Justice Ruth Bader Ginsburg: But you just said it's an academic issue because there's not a market for leaves or for paste.

What Congress was getting at was crack.

The judge used the term cocaine base.

Assume you are right.

What should happen?

Could you go back to the judge and he would then say, well, this is -- the chemists testified this is crack?

Mr. Pincus: Well, Your Honor, we would like to go back to the judge, because in this case in fact the chemist didn't testify.

The chemist did testify that it was chemically -- it was cocaine in its chemical form, but the chemist did not testify: In my experience this is crack, based on looking at lots of samples.

Justice Ruth Bader Ginsburg: It was -- it was -- the testimony was it was a rock-like substance.

What wasn't said was -- what is it?

Bicarbonate, sodium bicarbonate, was not mentioned.

Mr. Pincus: The testimony was there was no -- there was no baking soda found, and that there was a -- that it was chemically basic.

The testimony about whether it was crack or not principally came from the informant in the case and a little bit from an agent who also said that he believed that cocaine powder was chunky.

And so we believe we have a fair argument on remand, when the district judge looks at the facts, that he will say the government did not meet its burden, even though it's only a preponderance.

Justice Ruth Bader Ginsburg: The -- the district judge would be the finder, right?

Mr. Pincus: The district judge would be the finder.

Yes, Your Honor.

Justice Ruth Bader Ginsburg: Because you have no Apprendi problem?

Mr. Pincus: Yes.

I would like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, Mr. Pincus.

Ms. Saharsky.

ORAL ARGUMENT OF NICOLE A. SAHARSKY ON BEHALF OF THE RESPONDENT

Ms Saharsky: Mr. Chief Justice, and may it please the Court:

Whether you call it freebase, coca paste or crack, it's the same thing chemically.

It is cocaine base, it is smokeable, it has the same effects on the user; and Congress did not limit the statute to one form of cocaine base.

This Court shouldn't do it, either.

Just to pick up on some of the--

Justice Sonia Sotomayor: I'm sorry, cocaine paste -- coca paste is smokeable in its paste form?

Ms Saharsky: --Yes, it is smokeable in its paste form, and that evidence was before Congress.

It's cited in our brief.

Justice Sonia Sotomayor: All right.

Assuming we accept the -- the brief of the physicians and scientists, they say clearly that coca leaves can be chewed, but they are bulky and contain a lot of organic matter in addition to cocaine.

I understood their scientific explanation to say that coca leaves contain coca -- cocaine.

I think you've taken the contrary position, but let's assume we accept the sciences answer.

What does that do to your argument?

Ms Saharsky: Well, of course we don't think that that's right as a scientific matter.

But probably more importantly, that's not something that we can prove.

We have the world's experts working for the DEA on cocaine-related substances.

We don't have one of them who would get up in court and say that coca leaves contain cocaine in its base form.

We--

Justice Sonia Sotomayor: So you're representing that you will never prosecute someone who possesses coca leaves under subdivision (iii)?

Ms Saharsky: --The Romanette provision, Romanette (iii), which would be the sentencing enhancement, we have never applied in any case to coca leaves.

We have never even had a case where it's been an issue.

We've never considered it--

Justice Sonia Sotomayor: And you're representing to the Court that you won't?

Ms Saharsky: --We don't have a chemist who would testify that.

We would not be able to make that showing in court.

But perhaps a more important question is whether there was evidence before Congress that the provision in Romanette (iii) would apply to coca leaves, and there wasn't.

There was evidence before Congress about different base forms of cocaine, that distinguished between the salt form and the base form, and it mentioned substances like coca paste, it mentioned substances like freebase, and it mentioned crack.

And the important thing in -- in looking at the term that -- that Congress eventually used, cocaine base, is that that came from science.

Petitioner says, well, you know, "base" was a colloquial term.

The reason that "base" was used is because cocaine is in its base form.

That is what makes it smokeable.

Justice Elena Kagan: It's a bizarre term, Ms. Saharsky.

It's -- I mean, cocaine base means the same exact same thing as cocaine, because cocaine is a base.

It's like referring to an apple by saying "apple fruit" or referring to a poodle by saying "poodle dog".

I mean, it's a strange way to speak about it.

Ms Saharsky: It is an extra clear, extra precise way to think -- to speak about it, and we think that there's a good reason that Congress did that.

In the preceding provision in Romanette (ii), Congress was defining the whole world of cocaine-related substances.

So when it used "cocaine" there -- and it does mean cocaine base there -- but cocaine, its salt, its optical and geometric isomers, it's talking about everything.

It didn't need to distinguish between the different forms.

And that formulation had already existed like that in the Controlled Substances Act.

But then in 1986 Congress was hearing testimony about a specific form, the base form of cocaine.

Did you, at that point -- would one want Congress to have just said (iii)?

No, Congress said "cocaine base" because it wanted to be extra clear.

There's another reason -- another--

Justice Elena Kagan: It's a strange way to be extra clear, to -- to use a different phrase that's meant to mean the same thing as another phrase.

To use two different phrases that are meant to mean the same thing is not a very good way of being clear.

Ms Saharsky: --Well, it's really just adding the extra word "base".

It's not like they're two completely different words.

It's just the addition of "base" to be extra clear.

Another way to think about it is this: In 1986, prior to 1986, this Court had decided cases in which it had said, somewhat imprecisely, that cocaine hydrochloride was cocaine.

It called it "cocaine" throughout its opinion.

It didn't make a scientific finding, but that's how the Court referred to cocaine hydrochloride, "cocaine".

This was in its 1970 decision in Turner.

It was in its 1985 decision in Montoya de Hernandez.

Congress is presumed to know about this Court's decisions.

It knew perhaps that courts had used the term "cocaine" imprecisely, despite the fact that it has a specific scientific meaning.

Congress was going to be extra clear and use the term cocaine base.

Another--

Justice Sonia Sotomayor: So why did it draft it to say "cocaine salts, et cetera", as opposed to

"cocaine, comma, its salts, et cetera? "

If it intended to differentiate between true cocaine and its byproducts like salts, et cetera, why didn't it just simplify the language in Roman numeral number (ii)?

Ms Saharsky: --Yes, I think that it does that, Your Honor.

I'm looking at page 19 of the government's brief.

This is -- you know, throughout the briefs, you have Romanette (ii) and Romanette (iii).

If you look at Romanette (ii) -- again, I'm on page 19 of the gray brief, but it's in other briefs, too -- Romanette (ii), Roman (II):

"Cocaine, its salts, optical and geometric isomers. "

In Roman (II), "cocaine" does refer to the base form; "its salts" refers to cocaine hydrochloride.

Justice Sonia Sotomayor: But why would it do that?

If it's going to treat cocaine base, which is the same thing as cocaine, differently from cocaine salts, why doesn't it just say cocaine salts?

Ms Saharsky: Well, it--

Justice Sonia Sotomayor: Couldn't--

Ms Saharsky: --I'm sorry, Your Honor.

Justice Sonia Sotomayor: --it say "cocaine and its isomers" or something?

"Its isomers".

Why is it using (ii) and in -- in (iv)?

Ms Saharsky: The base form has to be somewhere in Romanette (ii), because the way that Congress drafted these two provisions together is that a large amount of substances are listed in Romanette (ii) and then a subset is pulled out in Romanette (iii).

And Romanette (iii) says, you know, 50 grams or more of a mixture of substance described in clause (II) which contains cocaine base.

So you need to have something that's described in clause (II) and that would contain cocaine base, and that would be the word (II).

So you couldn't just say "cocaine salts", meaning the hydrochloride form, optical and geometric isomers.

You need something to get the base form into -- into Roman (II).

Justice Samuel Alito: No, but you could have -- in Romanette (iii), they could have said 50 grams or more of a mixture or substance which contains cocaine base, period.

There was no need to have it described in clause 2 if there's nothing implied in Romanette (ii) that is not also in Romanette (iii) with respect to cocaine.

On your submission, it's just bad draftsmanship?

Ms Saharsky: I think that there is a redundancy, but I think it is understandable in light of the fact the courts had used the word "cocaine" somewhat imprecisely.

I think it's also understandable in light of the fact that Congress was putting an enhanced penalty in play, and that if Congress had not been extra clear there would be criminal defendants, perhaps like Petitioner, coming to court and saying, if Congress had just said "cocaine", that that wasn't clear enough.

It's true that -- you're right, Justice Alito, that Congress could have said: Here's some things in (ii); here's some things in (iii); they don't overlap.

Congress didn't do that.

Justice Ruth Bader Ginsburg: What is in (ii) now, on your reading, your expansive definition of "cocaine base"?

What is in Romanette (ii) other than powder?

Ms Saharsky: Well, there is, in Roman (I), coca leaves, except those from which all of the active substances have been taken out.

In Roman (II), the salts of cocaine, their optical and geometric isomers and salts of isomers.

You have (III), which is ecgonine, which is a smaller molecule that is part of the cocaine molecule.

It was made -- it was used in pharmaceuticals a while back.

It's not something that's really seen in the production process now.

And you would have compounds, mixtures, or preparations that don't contain cocaine base.

Justice Samuel Alito: What about optical and geometric isomers of cocaine?

Those -- those fall under Romanette (ii), Roman (II), but not under (iii).

Are there such things?

Ms Saharsky: Yes.

There are optical -- optical isomers are -- isomers are generally substances that have the same chemical definition, the same -- but different spatial arrangements of atoms.

Optical isomers are nonsuperimposable mirror images, like right and left-handed versions of the same molecule.

Those are -- those are both cocaine base.

There is a right-handed cocaine base and a left-handed cocaine base.

They're both cocaine base.

We think that those would be counted within Romanette (iii).

Geometric isomers, which are never seen, are slightly different.

They are based on spatial arrangements where a certain part of the molecule is -- it is pushed out or pushed up axially or equatorially.

They're -- you know, geometric isomers are not seen.

Justice Ruth Bader Ginsburg: They're all very exotic, but practically, what does the government prosecute under Romanette (ii)?

What substances other than--

Ms Saharsky: I would say cocaine hydrochloride would be the primary one, which would be powder cocaine.

Justice Ruth Bader Ginsburg: --Yes.

That's -- so there seem to have been a lot of words here, but in practice, (ii) is powder and everything else is under (iii)?

Ms Saharsky: Well, the things that would be under (iii) would be any form of cocaine base: That would be coca paste, freebase, crack, whatever you want to call it.

Just to explain, Justice Ginsburg, why there are so many words here: You know, this definition is taken from -- is the same -- the stuff in Romanette (ii), this long definition -- from other places in the Controlled Substances Act.

It's taken from Schedule II, where Congress is defining the whole world of cocaine-related substances that are subject to Federal law, so that's -- that's where all of this comes from.

This was something that existed--

Justice Stephen G. Breyer: It's my understanding here that -- that the problem in this case -- tell me if I'm wrong -- is because cocaine can become -- can be a salt.

People sniff it often, I guess, if it's a salt.

And that's bad.

And then there's a kind that's worse, that's freebase or crack, and that isn't a salt and it isn't a poodle and it isn't an acid.

It takes a base form, right?

Ms Saharsky: --Yes.

Justice Stephen G. Breyer: And so that's why they have a higher punishment.

Then the odd problem is that maybe a cocaine leaf, but certainly cocaine paste, which are more primitive forms, also have a chemical-based solution, they too.

So they've written this statute that sounds like -- that sounds like

"Who's your father's son who's not your brother? "

It takes a long time to figure it out.

All right.

So would you have an objection -- and I wonder if the other side would have an objection -- if what we said this word (iii) means is that it is cocaine in the chemical form of a base after it has been processed beyond the stage of coca paste?

And that's how we read it.

That would seem to exempt the things they're most worried about, the paste and the leaves.

And I'm not going to repeat the same stupid joke, poodles and fruits, but you see the point.

Is there any objection from the point of the government to define it in that way, or the other side?

And why?

Ms Saharsky: Yes.

There's an objection on behalf of the government, and there are several reasons why that's true.

The first is there often won't be evidence of how the substance was made.

Second--

Justice Stephen G. Breyer: No, I don't care how it was made.

All we do is test it.

Now, all we have to do is test it, and then we look to see if it's a leaf.

That isn't tough, I don't think.

And then we have to look and see if it's this yellow stuff that looks like paste, and I guess that isn't too tough, either.

So those are the only things you have to do.

You have to test it, look and see if it's a leaf, look and see if it's a paste.

Now, even the -- I mean, I say "even".

I mean, certainly the DEA could do that.

Ms Saharsky: --With -- with all respect, Your Honor, I--

Justice Stephen G. Breyer: Certainly they could, right?

Ms Saharsky: --I just -- I don't think it's that easy.

Justice Stephen G. Breyer: No, that's what I want to know.

Ms Saharsky: Okay.

First of all, if you talk about the chemical testing that can occur, DEA chemists can tell you if it contains cocaine base or if it contains cocaine hydrochloride.

Justice Stephen G. Breyer: We got that part.

Right.

Ms Saharsky: They're not going to start making guesses about how it was processed.

They're just going to tell you what they can--

Justice Stephen G. Breyer: That's fine.

Justice Elena Kagan: But they don't need to do that, Ms. Saharsky.

Suppose we just said it needs the right chemical definition, and it's rock-like, rock-like, crystalline, whatever you want to call it.

So it's rock-like.

It's not a paste; it's not a leaf; it's a rock.

Ms Saharsky: --Fine.

As soon as the Court starts saying not a paste or rock-like or something like that, you have some problems.

The first is, you're basically giving a national uniform roadmap of -- to evasion on behalf of drug traffickers.

It doesn't -- crack, for example, or the rock form, doesn't have to be rock-like.

You can grind it up in a coffee grinder and make it into a powder.

It is still smokeable.

It is chemically the exact same thing.

Justice Stephen G. Breyer: Can you make it in--

Justice Antonin Scalia: I would assume that your major objection would not be that.

Your major objection would be: We're not supposed to be writing a statute, we're supposed to be interpreting one.

And there is no way to -- to get that out of these words, no way, absolutely no way.

Is there?

Ms Saharsky: That is exactly how I should have started, Your Honor.

[Laughter]

Justice Elena Kagan: But this is -- but this is, Ms. Saharsky, just a strange statute, where you are -- your definition creates all kinds of issues about why it is that Congress used two different phrases to mean the same thing, and then how it is that if they did use two different phrases to mean the same thing, you're effectively reading cocaine out of the statute in Romanette (ii), right?

Ms Saharsky: No.

I think that that's based on a misunderstanding of how the statute works.

You need to have (ii) so that when Romanette (iii) says something contained in (ii) that contains cocaine base, it is pulling out a substance that is in (ii).

But it's -- it's not a redundancy.

Justice Elena Kagan: Well, but no, cocaine is the same as cocaine base.

So it's like saying -- it's like saying apples, oranges, and bananas cost one dollar; aforesaid apples cost three dollars.

That's a strange way to write a statute.

Ms Saharsky: That is how Congress wrote the statute, though.

It defined a large amount of substances and then it pulled out one substance.

Justice Elena Kagan: But why would it say apples cost one dollar in Romanette (ii) if it was going to say apples cost three dollars in Romanette (iii)?

Ms Saharsky: Because these definitions in Romanette (ii) preexisted in other parts of the Controlled Substances Act, in the definitions section in 802, in the definitions of controlled substances in Section 812.

This subseries of definitions, which are the whole world of cocaine-related substances, are used several places.

So Congress pulled them over and it used them here too, to define the whole world of everything--

Justice Antonin Scalia: Is it--

Ms Saharsky: --And then it pulled out one thing for special treatment.

Justice Antonin Scalia: --Is it not relatively common statutory drafting to include something in an earlier section which is also included in a later section that imposes a higher penalty?

For example, as I recall from my criminal -- criminal law courses, States have statutes that provide that the taking of a human life, homicide, is -- is punishable by so much; and then it says the taking of a human life with malice aforethought is punishable by more.

Now, does -- does the second include the first?

Of course it does.

It includes the first and then something.

And it seems to me that's the same thing here.

It includes the first, the cocaine, but it has to be within a compound mixture of preparation.

Ms Saharsky: Yes, you are 100 percent correct, and I think that the statutory language makes that clear because it says it has to be a mixture of substances described in clause (ii).

Justice Ruth Bader Ginsburg: Then, Ms. Saharsky, you do get the problem that Justice Breyer was trying to avoid.

That is, on your definition this paste, which is supposed to be less addictive, less addictive than powder, gets bracketed with crack, which is more addictive.

Ms Saharsky: I don't think that there is evidence that paste is less addictive than powder.

They contain the exact same chemical, which is cocaine in its base form.

And the question -- they both can be smoked.

Now, the question is does one have a higher percentage purity of the chemical than the other?

Maybe, but that just depends on how it was prepared.

And there are cases in the courts of appeals, several in the cases that gave rise to the circuit split in this case, where the courts appear to be grappling with whether something that was a little bit wet but still rock-like should be called paste.

So--

Justice Stephen G. Breyer: --But you define it in your brief, and this is very interesting to me -- you talk about it being a yellow substance that came directly from grinding up leaves, something like that.

You have the definition there.

It's written.

Take that definition that you wrote, and what you've said that's very interesting to me that I would like to know, is that, that substance, in some significant amount of time is actually more addictive, more dangerous than the salt, which is ordinarily sniffed?

Now, is that what you're saying, because I received from this material the contrary impression.

I had the impression that the yellow paste that comes from the leaf directly is, if anything, less addictive and less harmful, if anything, than the salt which you sniff.

Now, which is it?

Ms Saharsky: --It--

Justice Stephen G. Breyer: Or if--

Ms Saharsky: --I'm sorry.

Justice Stephen G. Breyer: --Go ahead.

Ms Saharsky: It is the case that the paste, just like the freebase and the crack, can be smoked, and for that reason is seen as more addictive than the powder.

Justice Stephen G. Breyer: So now if I want to find a citation for the authority that paste, yellow, made out of leaves is in fact more dangerous and Congress could have thought that than -- more dangerous than ordinary salt sniffed, I will read what?

Because that -- that -- I did have that wrong impression.

Ms Saharsky: You would read our brief pages 30 to 33--

Justice Stephen G. Breyer: Well, what you've referred to, in other words.

I -- I mean, I trust your brief implicitly, but I don't know on the scientific matter or the congressional.

I would like to know what to read on that.

Ms Saharsky: --Right.

And in -- on these pages of our brief we're citing evidence that was before Congress in the hearings in this case.

There were statements by two different authorities who are scientists--

Justice Stephen G. Breyer: What page is that of the brief?

You don't have to read it.

I'll read it.

Ms Saharsky: --No, that's okay.

It's right here.

It's like 29, 30, 31.

There's a Dr. Beck who -- from Yale, who testified specifically about the dangers of smoking coca paste.

Justice Stephen G. Breyer: Okay, I'll read that.

Thank you.

Ms Saharsky: And one I -- the point I really wanted to make is that, you know, once the court says it has to be pasty, or it has to be yellow, you know, any of those things can be changed.

The one thing that can't be changed is the chemical composition.

It's still in the base form; it's still deadly; it still can be smoked.

The paste doesn't have to be yellow, just like crack doesn't have to be white or off-white.

There was evidence that a few years ago there were folks in Ohio that were coloring crack green for St. Patrick's Day.

Any of these things can be changed.

It doesn't have to be rock-like.

It can be ground up to a powder and it can be smoked that way.

But the important think is that it's the same thing chemically.

And I think if you look at the Controlled Substances Act, not just in this provision, but holistically, what Congress was concerned about was dangerous chemicals.

This gets back to the point that the Chief Justice made, which is the reference in the provision at issue here to a "mixture or substance" containing cocaine base.

The thing that Congress looked at was: Do you have a substance which may not be 100 percent pure; it's sold on the street; but does it contain the dangerous chemical?

Congress defines throughout the Controlled Substances Act the things that it was concerned about in chemical terms.

And that's just not because it was an easy way to define things.

It does give greater accuracy and certainty.

But it's because the harms that are visited on people, the reason that they are controlled substances, that they don't have approved medical uses, and that they are extremely addictive, is because the chemical is inside of them and the chemical is dangerous.

So whether you get the chemical out of paste, whether you get it out of rocks, whether you grind the rocks and make it into a powder, whether you freebase it, it is the same thing.

And just to -- to make sure the Court has you know, some example or some thoughts as to the issues that would be caused if the Court started making up definitions of crack, you know, a word that doesn't appear in the statute and does not have any clear meaning -- you know, Petitioner says it wasn't clear in 1986, the definition of crack -- I just want to give the Court an example of some of the problems that the -- the issues the courts of appeals have confronted.

In several courts of appeals there have been substances which I think perhaps under Justice Breyer's definition would qualify as paste.

The courts didn't call them paste, but in the Bryant case in the Fifth Circuit they said there was a brown, soft, mushy wet substance that contained cocaine base was being brought in the United States.

The Easter case in the Tenth Circuit: a wet gooey, cream-colored substance.

Those courts are ones that use the chemical definition of cocaine base, and they said, look, they contain cocaine base, they have the deadly chemicals, they count.

Justice Samuel Alito: Well, my understanding of how coke -- how the paste is produced is the following: You start with the leaves; then people vigorously macerate the leaves by stomping on them for an hour or more; and then this mixture is -- this -- what's left is mixed with an alkaline material such as sodium bicarbonate, an organic solvent, such as kerosene, and water; and what you end up with is a gummy, yellowish solid called coca paste; is that -- that's correct?

Ms Saharsky: Yes, that's true.

But it also can be dried.

It can -- can be dried and smoked; it has been dried in South America, so it's not always wet, it's just a question of, you know, whether it has had time to dry or not.

Justice Samuel Alito: Yes.

Now, if a chemist analyzed that or then analyzed crack or freebase, wouldn't there be present in the coca paste lots of other substances that would not be present, in quantities?

Other substances would be present in quantities in the coca paste that would not be present in the crack or the freebase?

Ms Saharsky: Well, they all -- any of those would have impurities that are not cocaine base.

All three of them would be identically -- chemically identical if that they would all contain cocaine base; but you're right; the impurities would be different because the method of preparation is different.

Justice Samuel Alito: So a DEA chemist could test -- could test a substance and say this is coca paste of the type that is smoked in South America by some people.

This is crack or freebase that has been mixed with water into a pasty substance -- a chemist could make that -- that differentiation, couldn't they?

Ms Saharsky: I think it really depends, Your Honor.

I think if it's just a -- a regular DEA chemist, they would be able to tell you what chemicals they can find through standard techniques like infrared spectroscopy, like gas chromatography, and they can say we've identified these chemicals in this substance.

Unless it is a chemist -- and we do have some that have additional knowledge of methods of preparation, DEA agents who have that kind of experience, have seen it prepared -- those chemists -- regular chemists would not be testifying about how it was prepared.

For example in this case the chemist testified that the -- the sample had cocaine base, it did not have detectable amounts of sodium bicarbonate, and then defense counsel said well is -- is this -- do you think that it's -- or I'm sorry, the chemist, the defense counsel said -- wanted to -- tried to distinguish it from freebase, and said it's freebase crack; and the chemist said you know, I can't answer those questions.

I can tell you scientifically what it includes.

And that -- that's really the -- the issue of proof, is that you can tell chemically that it has the substance that Congress was trying to get at, the cocaine base.

I suppose you can tell what other impurities are there, but you know, Congress doesn't care about the impurities, it cares about the cocaine base; and that's why you know, it says mixture of substance containing cocaine base.

You know, one -- one other thing that I just want to make sure is clear to the Court, is that there was ample testimony before Congress at the time that it enacted this provision about the chemistry of this all, that when Congress spoke about cocaine base, it was understanding that base meant chemically the base form, and that again is near the pages I cited to Justice Breyer in our brief.

But two different scientists, one was the head of the National Institute for Drug Abuse; the other was the -- was a professor at Yale.

Both with experience, and they said things like the form of the drug is the freebase, the usual kind of cocaine is a salt.

It is cocaine with hydrochloride, it is a salt like sodium chloride.

But this has no chloride attached to it, it is freebase, which is just plain cocaine.

So Congress knew the base form of cocaine is what would normally be called cocaine.

It learned about the science and it used the term cocaine base.

And I take your point, Justice Kagan, some of the other Justices: There is perhaps redundancy in saying cocaine base instead of just saying cocaine, but when Congress in 1986 was faced with a situation where courts, including this Court, had used the term cocaine to refer imprecisely to the cocaine hydrochloride form and Congress was going to put a mandatory minimum penalty in place, Congress had every incentive to be extra clear, and that's exactly what we think that Congress was doing here.

Justice Antonin Scalia: Ms. Saharsky, coming back to Romanette (iii), you have 50 grams or more of a mixture or substance described in clause 2.

Doesn't -- it really doesn't have to be a mixture.

It could be pure, couldn't it?

It says "mixture or substance", not mixture.

Ms Saharsky: Yes, it could be pure.

I don't know that we've seen any cases like that, but it is almost always cut with something else.

So just to wrap up and be as clear as possible, what Congress had intended to do in the Controlled Substances Act really was to pull out chemicals that -- that have certain pharmacological effects on people that are dangerous.

Congress did that by using the term "cocaine base".

That is a term that is expansive and includes all these kind of forms that we've been talking about today.

The lower courts have struggled in trying to figure out whether a substance that's wet, off-white, rock-like, paste-like counts as cocaine base.

Certainly the Seventh Circuit has had several cases like that.

It struggled.

If this Court picks just one definition to limit the term "cocaine base", it's really setting up a road to evasion for drug traffickers to change to a different form.

We hope that this Court won't do that.

We just don't think the text supports it.

It says "cocaine base" without any limitation.

And this -- we just don't think that this -- this Court should be adding a limitation based on what it thinks Congress must have intended but didn't say in the text.

If the Court has no further questions, the judgment below should be affirmed.

Chief Justice John G. Roberts: Thank you, Counsel.

Mr. Pincus, you have four minutes remaining.

REBUTTAL ARGUMENT OF ANDREW J. PINCUS ON BEHALF OF THE PETITIONER

Mr. Pincus: Thank you, Mr. Chief Justice.

Just a couple of points.

First of all, in response to Justice Breyer's question, the 2002 sentencing report where -- sentencing commission report on this issue, on page 110, recommends to Congress that substances other than crack should be excluded from Clause 3, and I'm quoting,

"because they do not present the heightened concerns associated with crack cocaine. "

Justice Stephen G. Breyer: Yes, but she says there's no way -- and she does cite this professor from Yale and so forth, who says if the stuff has the base in it, it can be abused in ways that if it has the salt in it, it can't be abused.

That's all we can look at.

Mr. Pincus: But Your Honor, I--

Justice Stephen G. Breyer: That's her point.

That's her point.

You can respond to that if you want.

Mr. Pincus: --I think that is her point.

But I think the question here -- all of these substances are criminalized, and they're all going to be penalized.

The question is: What deserves the 100-to-1 sanction?

That, to us, means something that Congress was especially concerned about, and certainly, because the government agrees that cocaine hydrochloride is only in 2, something that's worse than cocaine hydrochloride, which is a pretty bad thing.

As Judge Posner said, there's no reason to imagine that Congress meant to punish paste more than cocaine hydrochloride.

Justice Stephen G. Breyer: She says there is a reason.

It's because it contains base, and for many years, it was smoked in Latin America and can be smoked here.

That's her reason.

Now, your response is, it's a bad reason?

Mr. Pincus: Our response is that it is -- it does not have the potency that crack had.

It was smoked here and didn't give rise to the epidemic that occurred once crack was created, because that was more potent, more marketable, and led to all the evils that Congress was trying to get at.

Second point: We would be very happy to accept your definition.

Third point, about the statutory language: I think the critical question here, as several members of the Court have noted, is that (ii), but throughout the statute -- means all chemical forms of cocaine.

If that's what Congress meant in (iii), there was no reason to just -- not to just say it.

The words "cocaine base" could have a chemical meaning, but the word "base" was also in this debate as a word that was being used to describe the specific evil that Congress was aimed at.

And so we think, at the worst, there's ambiguity here.

We think it's quite clear that by using those different terms, Congress meant something different, but at worst, there's ambiguity here.

And an ambiguity, under the rule of lenity, means that the clause should be construed narrowly.

And, Justice Scalia, going to your point in your analogy to State law, the problem here is that everything that is in clause 2 is in clause 3 under the government's interpretation, because clause 2, Roman (II), has the word 2, Roman (IV), says any compound mixture or whatever containing cocaine.

Under the government's theory, that provision will never, ever be invoked, because every offense that uses cocaine is sanctionable under 3.

And so it's not the situation with--

Justice Antonin Scalia: It's the same with homicide and murder.

Every murder, every murder, is a homicide.

Mr. Pincus: --Yes, but the question here is whether every homicide -- whether every lesser form of homicide is also capital murder.

And what the government's position means: Every lesser form of homicide, everything that's in (II) that sets up a punishment, is also in (III), and we think that's the problem with their interpretation.

And it's why, if it's unclear, as you said maybe it was, then the rule of lenity should apply, and Congress can fix it.

If Congress meant to include all of these other substances, Congress can easily fix the statute.

But we think, given the way the statute looks right now, that's not possible.

Two more--

Justice Sonia Sotomayor: Let's assume for the sake of a hypothetical that the statute was the same but that things were reversed; that the smaller universe of items was the salt rather than the crack, and so they put an enhancement in Roman numeral number (III) for salt rather than crack.

Is your argument that it's redundant based on the fact that a larger grouping of the chemicals listed in Roman numeral number (II) is excluded by Roman numeral number (III), so that -- is that the basis of your argument?

Mr. Pincus: --That particular argument would still apply.

Our principal argument, if I may answer the question, is that in this -- in the government's interpretation, the word "cocaine" and the word "cocaine base" -- the phrase "cocaine base" have the same meaning.

That evil wouldn't be present, and therefore, our argument would be harder, but it is present here.

Chief Justice John G. Roberts: Thank you, Counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Sonia Sotomayor: In the first case, at the time of petitioner Frantz DePierre's conviction in sentence, clause (iii) of 21 U.S.C. 841 (b)(1)(a), provided a mandatory ten-year minimum sentence for certain drug offenses involving 50 grams or more of a mixture or substance which contains cocaine base.

DePierre, was convicted by a jury of distributing 50 grams or more of cocaine base, and he was sentence to ten years in prison.

This case presents the question whether the term "cocaine base" in clause subdivision (iii) refers to the chemically basic form of cocaine as the government who argues, or whether it refers strictly to crack cocaine as DePierre would have it.

Cocaine is a chemically basic compound derived from the coca plant.

The leaves of which can be processed into a smokable paste-like substance.

When this coca paste is processed with hydrochloric acid, the result is cocaine hydrochloride, the powder form of cocaine which is most commonly snorted.

Cocaine hydrochloride is not a base.

It is a salt with a different molecular formula than chemically basic cocaine.

However, it can be converted into chemically basic cocaine by processing it with a base like baking soda, producing crack cocaine which is smoked.

Cocaine hydrochloride can also be processed with ammonia to produce a less common smokable drug known as "freebase".

Coca paste, crack cocaine, and freebase, all contain cocaine in its basic form.

We agree with the government that the most natural reading of the term "cocaine base" is chemically basic cocaine.

In arguing that the term should be read instead to mean only crack cocaine, DePierre asked so as to stray far from the statute's text, as the term "crack cocaine" appears nowhere in the statute.

Although the term "cocaine base" is somewhat redundant, from a chemical prospective, cocaine is a base.

We think Congress had good reason to use cocaine in clause (iii), namely to distinguish the substances covered by that clause from the cocaine related substances enumerated in another clause in the statute, which provides lower penalties.

At the time Congress enacted the statute, the word "cocaine" was commonly used to refer simply to cocaine hydrochloride that is powder cocaine.

And in the scientific and medical literature, if it wasn't confusing enough, the word "cocaine" is often used to refer to all cocaine related substances including powder cocaine.

Thus, the term "cocaine base" serves to delineate the precise set of substances subject to the higher penalties.

As we explain in our opinion, we are also not convinced by DePierre's additional arguments.

We do not agree that reading cocaine base in clause (iii) to mean chemically basic cocaine, renders superfluous, the word "cocaine" used elsewhere in the statute, nor does our interpretation produce an absurd result.

We are also not persuaded by DePierre's suggestion that when Congress enacted this provision, it was all -- it was solely concerned with the special dangers produced by crack cocaine.

And finally, the fact that the United States Sentencing Commission has defined cocaine as used in the Federal Sentencing Guidelines to mean "crack cocaine," does not mean that the statute in this case must be interpreted in the same way.

In some, we hold that the term "cocaine base" as used in 841 (b) (1), means chemically basic cocaine.

The judgment of the United States Court of Appeals for the First Circuit is affirmed.