UNITED STATES of America, Plaintiff-Appellee, v. Shawn A. DUMAS, Defendant-Appellant

Opinion by Judge THOMPSON; Concurrence by Judge BOOCHEVER.

Shawn A. Dumas, an African-American, appeals his sentence imposed under the Sentencing Guidelines following his conviction by guilty plea to possession of 8.8 grams of cocaine base (“crack” cocaine) with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). He contends the sentencing provisions imposed by 21 U.S.C. § 841 (b) and implemented by USSG § 2D1.1—which punish possession of crack cocaine more severely than possession of powder cocaine—violate the equal protection component of the Fifth Amendment’s Due Process Clause. He argues the craek/powder cocaine distinction is unconstitutional as enacted because, although the distinction is facially neutral, it is a pretext for discrimination against African-Americans, who are more likely to possess crack than Whites. He also argues the more severe crack cocaine penalties are unconstitutional as applied because they are selectively enforced against African-American offenders.

We have jurisdiction pursuant to 28 U.S.C. § 1291 . We reject both Dumas’s “as enacted” and “as applied” arguments, and we affirm his sentence.

I

We have previously considered and rejected…

concurring.

Although I find the result in this case to be shocking, in that the punishment for the crack cocaine offense is the same as the punishment that would have been imposed for a comparable offense involving 100 times as much powder cocaine, and the evidence indicates that 92% of federal prosecutions for crack cocaine, which require the enormously higher terms of imprisonment, involve African-Americans, I am compelled to concur.

The result in this case, as in many equal protection challenges, depends on whether a rational basis or strict scrutiny test applies. It is extremely difficult, if not impossible, to find an improper discriminatory purpose when an act has been passed by Congress, and the Supreme Court has made clear that such a high hurdle must be cleared for application of the strict scrutiny test. See, Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 272 , 99 S.Ct. 2282, 2292-93 , 60 L.Ed.2d 870 (1979). If it were an open question in this circuit, one might find that the imposition of the 100 to 1 ratio with its invidious racial effects is so arbitrary and capricious as to lack a rational basis. We have resolved that issue, however, in United States v. Harding,…

64 F.3d 1427 95 Cal. Daily Op. Serv. 7200 , 95 Daily Journal D.A.R. 12,281 UNITED STATES of America, Plaintiff-Appellee, v. Shawn A. DUMAS, Defendant-Appellant. No. 94-30313. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 1, 1995. Decided Sept. 12, 1995. Phillip J. Wetzel, Spokane, WA, for defendant-appellant. Rolf H. Tangvald, Assistant United States Attorney, Spokane, WA, for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington. Before: WRIGHT, BOOCHEVER and THOMPSON, Circuit Judges. Opinion by Judge THOMPSON; Concurrence by Judge BOOCHEVER. DAVID R. THOMPSON, Circuit Judge: 1 Shawn A. Dumas, an African-American, appeals his sentence imposed under the Sentencing Guidelines following his conviction by guilty plea to possession of 8.8 grams of cocaine base ("crack" cocaine) with intent to distribute, in violation of 21 U.S.C. Sec. 841 (a)(1). He contends the sentencing provisions imposed by 21 U.S.C. Sec. 841 (b) and implemented by USSG Sec. 2D1.1--which punish possession of crack cocaine more severely than possession of powder cocaine--violate the equal protection component of the Fifth Amendment's Due…