Filed: Mar. 04, 1996
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 3-4-1996 United States v. James Precedential or Non-Precedential: Docket 95-3135 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "United States v. James" (1996). 1996 Decisions. Paper 209. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/209 This decision is brought to you for free and open access by the Opinions of the United States Cou
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 3-4-1996 United States v. James Precedential or Non-Precedential: Docket 95-3135 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "United States v. James" (1996). 1996 Decisions. Paper 209. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/209 This decision is brought to you for free and open access by the Opinions of the United States Cour..
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Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
3-4-1996
United States v. James
Precedential or Non-Precedential:
Docket 95-3135
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"United States v. James" (1996). 1996 Decisions. Paper 209.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/209
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 95-3135
_____________________
UNITED STATES OF AMERICA,
Appellee,
v.
KEITH JAMES,
Appellant.
_____________________
Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. No. 94-224
____________________
Submitted Under Third Circuit LAR 34.1(a) December 8, 1995
Before: STAPLETON, SAROKIN, and ROSENN, Circuit Judges
Filed: March 4, 1996
Bonnie R. Schlueter, Esq.
Office of United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, PA 15219
Counsel for Appellee
Thomas Livingston, Esq.
205 Ross Street
The Colonial Building
Pittsburgh, PA 15219
Counsel for Appellant
______________________
OPINION OF THE COURT
______________________
ROSENN, Circuit Judge.
1
This appeal primarily presents for consideration
questions concerning whether a civil forfeiture of an automobile
used in the sale of illegal drugs constitutes punishment under
the Double Jeopardy Clause of the Constitution, and whether the
Government must prove for purposes of sentence enhancement that
cocaine base constitutes crack cocaine. Appellant Keith James
pleaded guilty to possession and distribution of cocaine base in
violation of 28 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). The
United States District Court for the Western District of
Pennsylvania sentenced James to 108 months imprisonment pursuant
to Sentencing Guidelines Manual § 2D1.1. This section provides
for an enhanced sentence for the sale of "crack" cocaine. Prior
to sentencing, the Government seized James's 1986 Buick LeSabre,
pursuant to the forfeiture provisions contained in 21 U.S.C.
§881(a)(4).
James appeals his sentence on several grounds,1 two of
which merit discussion: (1) whether the judgment of sentence for
sale of cocaine base subsequent to the administrative forfeiture
of James's automobile is a second punishment for the same offense
in violation of the Double Jeopardy Clause of the Fifth
Amendment; and (2) whether the Government must prove at
sentencing that the substance James sold was "crack," a
1
The district court properly exercised jurisdiction pursuant to
18 U.S.C. § 3231. This court may hear the appeal from the
judgment of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§3742(a).
2
particular form of cocaine base subject to severe enhancement
under the Sentencing Guidelines.2
We see no merit to James's double jeopardy argument.
Because we believe, however, that the Government did not prove at
sentencing that James sold crack cocaine, James's sentence will
be vacated and the case remanded to the district court for re-
sentencing consistent with this opinion.
I.
On June 29, 1994, July 1, 1994 and July 11, 1994 James
sold cocaine base, allegedly aggregating 57.4 grams, to a
confidential informant. Undercover agents of a Drug Enforcement
Administration Task Force monitored the transactions. The agents
arrested James on September 19, 1994, and seized his 1986 Buick,
2
James also asserts the following arguments on appeal: (1) the
Sentencing Guideline provisions which provide for exponentially
harsher sentences for crack cocaine than for other forms of
cocaine violate the Equal Protection component of the Fifth
Amendment; and (2) the mandatory minimum sentencing provisions of
21 U.S.C. § 841(b)(1)(B)(iii) are ambiguous, thus the court
should apply the Sentencing Guidelines provisions for powder
cocaine, pursuant to the Rule of Lenity. We reject these
arguments as meritless.
James further asserts that the enhanced sentence for
crack cocaine is arbitrary and capricious in violation of the Due
Process Clause of the Fifth Amendment, and cruel and unusual
punishment in violation of the Eighth Amendment, in light of the
Sentencing Commission's recent criticism of the crack
enhancement. Although we empathize with the Commission's
recommendations with respect to sentence enhancement for crack as
against cocaine powder, Congress has rejected the
recommendations, leaving the court with no alternative but to
reject the above argument as meritless.
3
which he used in all three transactions. One month later, the
Drug Enforcement Agency (DEA) notified James of the forfeiture
proceedings for his automobile, and alerted him as to the
procedures to contest the forfeiture. James did not contest the
forfeiture, and thus, prior to sentencing, forfeited his interest
in the Buick to the United States.
James pleaded guilty to selling 57.4 grams of cocaine
base. At sentencing, the court rejected James's arguments
referred to above. The court sentenced James to 108 months
imprisonment, the minimum sentence available under the Sentencing
Guidelines for the possession and distribution of crack cocaine.
II.
We will first review James's claim that the
administrative forfeiture of his automobile constitutes
punishment for the same offense for which he was sentenced
criminally in violation of the Double Jeopardy Clause of the
Fifth Amendment. Review of the district court's ruling is
plenary. See Fabulous Assoc. v. Pa. Pub. Util. Comm'n, 896 F.2d
780, 783 (3rd Cir. 1990) (court must exercise independent
appellate review in constitutional matters).
James drove the Buick LeSabre that he co-owned with his
mother to the drug transactions. Subsequent to James's arrest,
the Government seized the car pursuant to 21 U.S.C. § 881(a)(4),
which provides, in pertinent part:
4
(a) Property subject
The following shall be subject to forfeiture to the
United States and no property right shall exist in them:
(4) All conveyances used . . . to transport, or .
. . facilitate the . . . sale [of cocaine].
21 U.S.C. § 881(a)(4).
The Government then notified James in writing of the
forfeiture proceedings and the legal methods to contest the
proceedings. James asserts that he did not contest the
forfeiture proceedings because to do so would have been an
"exercise in futility."
Prior to his sentencing hearing, James filed a Motion
to Bar Imposition of Sentence in the district court. He asserted
that the forfeiture of the Buick was punishment, thus a
subsequent judgment of sentence would constitute a second
punishment for the same offense, in violation of the Double
Jeopardy Clause of the Fifth Amendment.
The Double Jeopardy Clause provides:
[N]or shall any person be subject for the same
offence to be twice put in jeopardy of life or
limb.
U.S. Const. amdt. 5.
The Supreme Court has noted that the Clause "protects
against three distinct abuses: a second prosecution for the same
offense after acquittal; a second prosecution for the same
offense after conviction; and multiple punishments for the same
offense." See United States v. Halper, 490 U.S. 435, 440
5
(1989). James asserts that his subsequent sentencing violates
the prohibition against multiple punishments.
This court recently held that prosecution subsequent to
an administrative forfeiture does not subject a defendant to
double jeopardy, because an administrative forfeiture does not
constitute former jeopardy. See United States v. Baird, No. 95-
1202 (3rd Cir. August 11, 1995). In Baird, law enforcement
officials searched the defendant's residence on the suspicion
that he was manufacturing and selling a drug called "Ecstacy."
The officials seized drugs and manufacturing equipment, along
with $2,582 cash. The DEA invoked administrative forfeiture of
the seized cash under 21 U.S.C. § 881(a)(6). The defendant
claimed that the administrative forfeiture of the cash barred
subsequent criminal proceedings.
The defendant in Baird noted that recent Supreme Court
decisions have expanded the concept of punishment under the
Double Jeopardy Clause. See Montana Dept. of Rev. v. Kurth
Ranch, ___ U.S. ___, 114 S. Ct. 1937, 1948 (1994) (state tax
imposed on possession and storage of dangerous drugs constituted
second punishment for purposes of Double Jeopardy Clause); Austin
v. United States, ___ U.S. ___,
113 S. Ct. 2801, 2806 (1993)
(relying on Halper to determine that civil forfeiture pursuant to
21 U.S.C. § 881(a)(4) and (7) constitutes punishment for the
purposes of the Eighth Amendment's Excessive Fines Clause);
Halper, 490 U.S. at 449 (civil sanctions may constitute
punishment for double jeopardy purposes to the extent they serve
traditional goals of punishment--deterrence and retribution).
6
In Baird, the defendant asserted that these Supreme
Court cases establish that the administrative forfeiture of money
constitutes punishment for double jeopardy purposes. See Baird
slip op. at 6. Although the Supreme Court did hold that, under
certain circumstances, multiple punishment may constitute double
jeopardy, this court found that the forfeiture proceedings in
Baird did not constitute double jeopardy. The court noted the
distinction between civil and administrative forfeiture
proceedings. It asserted:
[A]dministrative forfeiture is only appropriate in
cases where the seized property in question goes
unclaimed. Without overstating it, administrative
forfeiture is, in reality, a non-proceeding -- it
is merely the consequence of no one having come
forward to claim the property seized or contest
its forfeitability.
Id. at 8.
The court went on to explain that the defendant's
administrative forfeiture of unclaimed alleged drug proceeds
could not be held to constitute punishment for double jeopardy
purposes. If this were the only holding in Baird, the instant
case would appear to be distinguishable. In this case, it is
undisputed that James and his mother owned the automobile that
was forfeited. This tends to support James's argument that the
forfeiture was "punishment." See Baird, slip op. at 19 (Sarokin,
J., dissenting) (in rem forfeiture serves, at least in part, to
punish the owner). The court in Baird assumed arguendo, however,
that the defendant was the owner of the forfeited money and
7
nonetheless concluded that the significant factor was the failure
of anyone to contest the forfeiture proceedings.
The court held that because the defendant in Baird
failed to contest the forfeiture, he never became a party to the
administrative proceeding. Thus, the defendant could not prevail
on the double jeopardy claim. Id. at 12. The court also noted
that "no one may be 'punished' in a manner relevant to the Double
Jeopardy Clause without first having been subjected to some form
of judicial procedure, either in the form of a criminal
prosecution or the 'functional equivalent' thereof." Baird, slip
op. at 12 n.11 (emphasis in original) (citing Ex Parte Lange,
85
U.S. 163, 176 (1874)). In this case, James also failed to become
a party to the forfeiture proceeding, and it was merely
administrative and not judicial. See also United States v.
Torres,
28 F.3d 1463, 1464-65 (7th Cir. 1994) (when defendant is
not a party to forfeiture proceedings, jeopardy does not attach,
and further prosecution will not constitute double jeopardy);
United States v. Kemmish,
869 F. Supp. 803, 805 (S.D. Cal. 1994)
("Even where the unclaimed property is titled in the name of some
person, personal rights protected by the Double Jeopardy Clause
are not affected by the forfeiture of the property through
administrative proceedings.").
This court's decision in Baird controls the instant
case. James did not contest the forfeiture of his automobile.
Thus, no former jeopardy attached, and James may not prevail on
his double jeopardy claim. We therefore hold that when a
defendant in a criminal case invokes the Double Jeopardy Clause
8
because of a prior administrative forfeiture of property, but
fails to contest the forfeiture proceeding or become a party to
it, jeopardy has not attached.
III.
James asserts that the district court should not have
sentenced him pursuant to the Sentencing Guideline's crack
cocaine enhancement provision. This court has plenary review of
issues of law raised by the district court's application of the
Sentencing Guidelines. See United States v. Mobley, 956 F.2d 450
(3rd Cir. 1992).
The district court sentenced James pursuant to Section
2D1.1 of the Sentencing Guidelines. Section 2D1.1 provides that
the court use the same base offense level for a crime involving
1.5 kilograms or more of cocaine base that it would use for a
crime involving 150 kilograms or more of cocaine. Thus, an
enhanced sentence or "100:1 ratio" exists in crimes involving
cocaine base, compared to cocaine, as defined in the Guidelines.
In 1993, the Sentencing Commission amended the
Guidelines to include the following definition of cocaine base:
"Cocaine base," for the purposes of this
guideline, means "crack." "Crack" is the street
name for a form of cocaine base, usually prepared
by processing cocaine hydrochloride and sodium
9
bicarbonate, and usually appearing in a lumpy,
rocklike form.
U.S.S.G. § 2D1.1
James contends that, by this definition, Section 2D1.1
expressly recognizes that "crack" is one form, among others, of
"cocaine base," and the only form that is subject to the
sentencing enhancements of Section 2D1.1. He asserts that the
Government has the burden of showing by a preponderance of the
evidence, not merely that the substance in question was cocaine
base, but that it was a particular form of cocaine base, "crack,"
as defined in the Guidelines.
James's indictment charged him with distribution and
possession of a "substance containing a detectable amount of
cocaine base." The government laboratory analysis reported the
substance as "cocaine base." In addition, James's plea agreement
stated:
The parties stipulate, for purposes of determining
Keith Henry James' offense level under the
Sentencing Guidelines, that the relevant quantity
of cocaine base is 57.4 grams.
In the plea colloquy, the trial judge directed this
specific question to the defendant:
Q. Now Mr. James, did you, as charged in Count
One of the indictment . . . knowingly,
intentionally and unlawfully distribute in excess
of five grams of a mixture and substance
containing a detectable amount of cocaine base?
A. Yes.
10
Given this record, James asserts that the district court erred in
applying the enhanced sentence for crack because he never pleaded
guilty to possession or distribution of "crack."
The Government contends that the court need not reach
the issue of the Guidelines treatment of crack versus cocaine
base. It asserts that James waived his right to contest the
enhanced sentence by admitting in the plea colloquy that he sold
crack. The problem arises because the indictment, the defendant,
and the court at the plea colloquy speak in terms of cocaine
base. Government counsel, however, refers to the contraband as
"crack cocaine." Thus, at the plea colloquy, the prosecutor
informed the court:
The parties agree that the relevant quantity of
cocaine base in determining Mr. James' offense
level is 57.4 grams. That's the total net weight
of the crack cocaine that was purchased in each of
the three transactions that comprise Counts One,
Two and Three. (emphasis added).
. . .
Mr. James exchanged a plastic baggy that contained
some suspected crack cocaine. That was sent to a
lab, analyzed, and was determined to be--I believe
the net weight was 22.0 grams of cocaine base or
crack cocaine. (emphasis added).
Thus, the Government contends that "there is no basis, in this
case, for this Court to reach the question of law presented by
James: whether the statutory term cocaine base is broader than
the Sentencing Guideline definition of cocaine base, and whether
the government is therefore required to present evidence at
11
sentencing that the cocaine base at issue constitutes crack
within the meaning of the Guidelines."
There can be no question that admissions to the court
by a defendant during a guilty plea colloquy can be relied upon
by the court at the sentencing stage. The problem here, however,
on this record, with the defendant and court speaking in terms of
cocaine base, and the prosecutor referring to the cocaine base as
crack, is whether the Government's characterization of the
contraband constitutes a sufficient admission of the defendant
under these circumstances that he possessed and sold crack merely
because he answered "yes" to the prosecution's description of the
crime.
A waiver of rights must be knowing and voluntary. See
United States v. Newman, 912 F.2d 1119, 1123 (9th Cir. 1990)
(voluntary plea requires real notice of the true nature of the
charge). Given the highly severe sentencing ratio of 100:1 for
crack versus cocaine, James's sentence may vary dramatically
depending on whether he sold crack or cocaine. We do not believe
that, without more, the casual reference to crack by the
Government in the colloquy with the court over "the relevant
quantity of cocaine base in determining Mr. James's offense
level" unmistakably amounted to a knowing and voluntary admission
that the cocaine base constituted crack. Thus, this court must
reach the issue of whether the Statutory Guidelines definition of
"cocaine base" as "crack" required the Government to show by a
preponderance of the evidence that the substance in question was
12
actually crack, especially in light of the enormously high
punishment at risk in this determination.
At his sentencing hearing, James adopted the testimony
of Dr. John David Alvin.3 Dr. Alvin testified extensively as to
the chemical properties of cocaine and cocaine base. Further, he
testified that there are several ways of preparing cocaine base:
A: [Y]ou wanted to know the various methods available
of creating or forming the cocaine base from the
hydrochloride salt.
Q: That is correct.
A: From the plant itself; from the hydrochloride
salt?
Q: Yes.
A: Yes, there are several methods depending upon, I
guess, the degree of sophistication you have
available to you. One method is to take this salt
and alkalinize it, which means add some basic
material, an alkaline substance, to it which
converts it out of its salt form and its cocaine
form and base form and then one removes the
solvent and is left with a preparation that is a
relatively clean preparation of cocaine base.
. . .
Q: What is the Richard Pryor method?
A: The Richard Pryor method is a poor example of the
process I just described not using the best of
solvents and not using the materials that are
necessary, but it is another way of converting the
salt to the base. Obviously it is dangerous; it
could be cleaner, but it is effective.
. . .
Q: The cocaine base which is derived from that
method, how pure is that?
3
Dr. Alvin testified as an expert witness in United States v.
Church, Crim. No. 94-106.
13
A: On a scale from zero to 100 percent pure, which is
all you can get, the first procedure I described
to you is close to 100 percent as scientists can
get it by the sophisticated methods that the
scientists might use. The method that apparently
Richard Pryor used will produce product whose
purity is purely dependent on how good that
person's technique is. . . . [I]t generally will
produce a substance that might be in the 80 to 90
percent range with regard to purity, which is the
best possible being 100 percent.
Q: Okay. And the government used the term
bicarbonate, I believe.
A: Another method of converting, yes, probably the
least sophisticated. Bicarbonate is an alkaline
substance and can produce the desired effect. By
combining the powder hydrochloride with the
bicarbonate in a mashy solution and letting it
evaporate and letting it dry, you end up with the
base cocaine mixed with some bicarbonate.
Q: And, again, approximately, can you designate any
kind of purity for this procedure, generally?
A: The same rules apply. It depends on how well it
is done and by whom. But in my experience, that
material has been anywhere from 40-some to 70-some
percent pure.
James contends that only this last form of cocaine
base, the sodium bicarbonate form, is subject to the sentencing
enhancements.4 The parties discussed James's theory at length at
the sentencing hearing. The court concluded:
4
As mentioned above, the Guidelines define cocaine base as
"crack," "the street name for a form of cocaine base, usually
prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rock like form."
U.S.S.G. § 2D1.1
14
[I]t is my opinion and my finding, so that you
have a record here, that cocaine base means crack
for purposes of the guidelines.
In United States v. Munoz-Realpe, 21 F.3d 375 (11th
Cir. 1994), the Court of Appeals addressed the impact of the 1993
defining amendment to the Sentencing Guidelines. In Munoz-
Realpe, the authorities arrested the defendant with six bottles
containing a liquid that tested positive for cocaine base.
Id.
at 376. The district court treated the substance as cocaine
hydrochloride under the Sentencing Guidelines and thus did not
apply the enhanced sentence for crack cocaine or cocaine base.
The appellate court affirmed.
The Munoz-Realpe court noted that, effective November
1993, the Sentencing Commission amended Section 2D1.1 of the
Guidelines to include the definition of crack as discussed above.
The court asserted that the Commission was addressing an inter-
circuit conflict. Prior to 1993, some courts held that cocaine
base under the Guidelines included all forms of cocaine base, not
just crack. See United States v. Rodriguez, 980 F.2d 1375, 1378
(11th Cir. 1992) (the term cocaine base is not limited to crack
cocaine); United States v. Jackson,
968 F.2d 158, 161 (2nd Cir.
1992) (forms of cocaine base not pure enough to be crack still
fall within Guidelines for enhanced sentence). The Eleventh
Circuit Court of Appeals held that, subsequent to the 1993
definition amendment, other forms of cocaine base that are not
crack should be treated as cocaine for sentencing purposes.
Munoz-Realpe, 21 F.3d at 377.
15
We find the Munoz-Realpe analysis to be persuasive. The
Sentencing Commission defines cocaine base for sentencing
purposes to mean the form of cocaine base commonly known as
crack. The Government failed to prove by a preponderance of the
evidence that the form of cocaine base James sold was actually
crack. Thus, it was error to apply the enhanced sentence for
crack pursuant to Section 2D1.1 of the Sentencing Guidelines.
IV.
James further contends that this court should extend
the Statutory Guidelines definition of cocaine base to the
mandatory minimum sentencing provisions of 21 U.S.C.
841(b)(1)(B)(iii).5 In Munoz-Realpe, the Court of Appeals
extended the Sentencing Guidelines definition to the mandatory
minimum sentencing provisions of 21 U.S.C. § 960(b).6 The court
reasoned that Congress, through its acceptance of the Guidelines
amendment, indicated that it intends the term "cocaine base" to
include only crack cocaine. Thus, the court deemed it proper to
look to the Guidelines in determining the meaning of "cocaine
base" in the mandatory minimum statute. See Munoz-Realpe, 21
5
If the mandatory minimum sentencing provisions for cocaine base
do not apply, the court may sentence James to a range of 18 to 24
months pursuant to the Sentencing Guidelines provisions for
crimes involving "non-crack" cocaine.
6
21 U.S.C. § 960 provides the mandatory minimum sentences for the
import or export of controlled substances. Section 960(b)
provides for an enhanced sentence for crimes involving cocaine
base.
16
F.3d at 377-78. In so holding, the Court of Appeals for the
Eleventh Circuit conflicted with the Second Circuit Court of
Appeals' holding in United States v. Palacia,
4 F.3d 150 (2nd
Cir. 1993) (declining to reinterpret the Minimum Mandatory
definition in the absence of new guidance from Congress.)
This court need not reach the issue of whether the
Guidelines definition of cocaine base should extend to the
mandatory minimum sentencing provisions. James's plea agreement
states that he sold cocaine base in violation of 21 U.S.C.
§841(b)(1)(B)(iii).7 Thus, he is precluded from arguing that the
mandatory minimum sentence should not apply.
V.
In summary, the district court committed no error in
rejecting the defendant's claim of double jeopardy. The
conviction of the defendant will be affirmed. However, the court
erred in its application of the Sentencing Guidelines enhancement
for crack in absence of proof by a preponderance of the evidence
that the form of cocaine base James sold was actually crack. The
defendant's sentence will be vacated and the case remanded for
resentencing consistent with this opinion.
7
Although James allegedly sold a total of 54.7 grams of cocaine
base, he pled guilty to Count I, which charged him with
distribution and possession with intent to distribute in excess
of 5 grams of cocaine base. Pursuant to 21 U.S.C.
§841(b)(1)(B)(iii), the appropriate sentence range is not less
than 5 years, and not more than 40 years.
17
18
UNITED STATES OF AMERICA v. KEITH JAMES
NO. 95-3135
STAPLETON, J., Concurring:
I join parts I, II, IV and V of the court's opinion. I further agree wit
colleagues that following the 1993 amendment, forms of cocaine base other than crac
should be treated as cocaine for purposes of sentencing under the Guidelines.
I disagree only with that portion of part III holding that the district c
was foreclosed from relying upon the defendant's apparent admission during his plea
colloquy that he sold crack cocaine. The majority concludes that because of the se
of the 100:1 sentencing ratio, a district court cannot rely on an apparent admissio
the defendant in a plea colloquy unless a court of appeals, on review, believes tha
"unmistakably amount[s] to a knowing and voluntary admission." In my view, the issu
whether James admitted to selling crack is an issue of fact. Like all other issues
fact material to a sentencing decision, this is an issue for the district court sub
only to clearly erroneous review by this court. Moreover, like all other such fact
it is to be decided by a preponderance of the evidence standard, not a higher one o
unmistakability.
At the plea colloquy the prosecutor referred to the substance in question
times as "crack cocaine." The court then asked, "Mr. James, you heard what [the
prosecutor] just said about what you did. Do you agree with what he said." James
responded, "yes." The district court was in a far better position than we to deter
a matter of fact what James intended to affirm by this statement. If the court had
an express finding that James intended to affirm that he sold crack and that, based
preponderance of the evidence, crack was sold, I would be unable to say that the co
conclusions were clearly erroneous.
19
It appears to me from the transcript of the sentencing hearing that the d
judge concluded that James intended to admit selling crack. It also appears that h
relied upon this finding when he determined by a preponderance of the evidence that
substance was crack. Were I sure that this is what transpired in the district cour
would affirm. The transcript is less than clear, however, and I would remand for
clarification from the district court. On remand, the district court, if it so cho
could affirm or disaffirm a factual finding that James admitted selling crack and,
affirmed, could rely upon that finding in resentencing. In the alternative, the di
court, in its discretion, could elect to hear further evidence regarding the compos
of the substance sold. While the government is not to be routinely granted two
opportunities to carry its burden at a sentencing hearing, a reopening of the recor
be justifiable here because the government, at the original sentencing hearing, was
clearly operating under the assumption, arguably reasonable, that James had concede
the relevant substance was crack cocaine. See United States v. Dickler, 64 F.3d 81
(3d Cir. 1995).
20
