In U.S. v. Hollis, case no. 05-30611 (May 7, 2007), the Ninth Circuit holds that under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), under which “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt,” a defendant charged with distribution of a controlled substance (21 U.S.C. § 841(a)) cannot be subject to the higher sentencing standard for distribution of a “cocaine base” with a prior felony drug conviction (21 U.S.C. § 841(b)(1)(A)) unless the government pleads and proves that the cocaine base in issue is “crack” cocaine. Citing earlier opinions for facts about the manufacture of cocaine powder and cocaine base, the court concludes that the two are “chemically identical,” and thus the term “cocaine base” in 21 U.S.C. § 841(b)(1)(A)(iii)) must mean “crack” in order to distinguish it from powder cocaine. Nonetheless, the court upholds the conviction because the error was harmless in light of “overwhelming and uncontradicted evidence at trial that the substance Hollis distributed was crack.”
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