At page 416 Interpreting "cocaine base" to include "crack" through legislative history29 citing cases“that congress and the sentencing commission must have intended the term 'cocaine base' to include 'crack' or 'rock cocaine,' which we understand to mean cocaine that can be smoked unlike cocaine hydrochloride.”
- United States v. Barbosa, 51 F. Supp. 2d 597 (E.D. Pa. 1999).published See United States v. Abdul, 122 F.3d 477, 478 (7th Cir.1997) (explaining that crack is ■ one of several forms of cocaine base and citing opinions in the D.C. Circuit, the Eleventh Circuit, and the Second Circuit which held, prior to the 19…
- People v. Ward, 167 Cal. App. 4th 252 (Cal. Ct. App. 2008).publishedIn United States v. Shaw, 936 F.2d 412, 416 (9th Cir. 1991) and [U.S.] v. Van Hawkins, 899 F.2d 852, 854 (9th Cir. 1990), we held that the distinction between cocaine base and powder cocaine ... is not unconstitutionally vague because the…
- United States v. King, 212 F. App'x 623 (9th Cir. 2006).unpublishedUnited States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991).
- United States v. Kevin Roberson, 194 F.3d 408 (3d Cir. 1999).published See United States v. Rodriguez, 980 F.2d 1375, 1378 (11th Cir.1992); United States v. Jones, 979 F.2d 317, 320 (3d Cir.1992); United States v. Wheeler, 972 F.2d 927, 930 (8th Cir.1992); United States v. Jackson, 968 F.2d 158, 162 (2d Cir.1…
- United States v. Roberson, No. 97-7309 (3d Cir. Oct. 14, 1999). See United States v. Rodriguez, 980 F.2d 1375, 1378 (11th Cir. 1992); United States v. Jones, 979 F.2d 317, 320 (3d Cir. 1992); United States v. Wheeler, 972 F.2d 927, 930 (8th Cir. 1992); United States v. Jackson, 968 F.2d 158, 162 (2d Ci…
- United States v. Robert Earl Jackson, United States of Am. v. Donald Hogan, United States of Am. v. Lester Wayne Lewis, AKA Les, 141 F.3d 1181 (9th Cir. 1998).unpublishedUnited States v. Jackson, 84 F.3d 1154, 1160 (9th Cir.1996); United States v. Harding, 971 F.2d 410, 412-14 (9th Cir.1992); United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991).
- United States v. Mickey Polk, 139 F.3d 909 (9th Cir. 1998).unpublished Prior to the 1993 amendments defining "cocaine base" as "crack," we concluded "that Congress and the Commission must have intended the term cocaine base to include crack." See Shaw, 936 F.2d at 416 (internal quotations omitted). 6 Here, Po…
- United States v. Henry Booker, 70 F.3d 488 (7th Cir. 1995).published(defining “cocaine base” as crack under § 841(b))
- United States v. Antoine Dewayne Persley, 69 F.3d 545 (9th Cir. 1995).unpublishedThis contention lacks merit. 5 The term "cocaine base" includes the terms "rock cocaine" and "crack" and is reasonably understood to mean "cocaine that can be smoked, unlike cocaine hydrochloride." See United States v. Shaw, 936 F.2d 412,…
- United States v. Derrick Bines, 64 F.3d 667 (9th Cir. 1995).unpublishedSee United States v. Davis, 36 F.3d 1424, 1434 (9th Cir. 1994); United States v. Shaw, 936 F.2d 412, 416 (9th Cir. 1991); Van Hawkins, 899 F.2d at 854 ; accord United States v. Brown, 859 F.2d 974 (D.C.
Show 18 more citing cases
- United States v. Larry D. Sanders, 996 F.2d 1220 (7th Cir. 1993).unpublished The defendant-appellant does not argue that § 841 fails to define the criminal offenses for which he was convicted, rather he contends that the § 841(a)(1) prohibition against distributing cocaine base fails to "establish minimal guideline…
- United States v. Gregory Errington Gaulteau, 4 F.3d 1003 (D.C. Cir. 1993).published Accord, United States v. Wheeler, 972 F.2d 927, 930 (8th Cir.1992); United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991). 1 Here, the government presented the testimony of a qualified expert who positively identified the substance teste…
- United States v. Joaquin Palacio, 4 F.3d 150 (2d Cir. 1993).published Palacio also contends that his right to equal protection is violated because the Ninth Circuit has defined the statutory term “cocaine base” as “crack,” i.e., “cocaine that can be smoked,” see United States v. Shaw, 936 F.2d 412, 416-16 (9…
- United States v. Robert Parker, 990 F.2d 1264 (9th Cir. 1993).unpublishedWe have distinguished cocaine base from cocaine "based on its different functions and effects," United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991).
- United States v. Curtis Fitzgerald Harding, 971 F.2d 410 (9th Cir. 1992).publishedIn United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991) and United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir. 1990), we held that the distinction between cocaine base and powder cocaine made in § 841(b)(1) is not unconstitutiona…
- Coalition for Clean Air Sierra Club, Inc. v. United States Env't Prot. Agency, & South Coast Air Quality Mgmt. Dist., Defendant-Intervenor v. S. California Edison Co. S. California Gas Co. S. California Ass'n of Governments, Plaintiff-Intervenors. Coalition for Clean Air Sierra Club, Inc., S. California Edison Co. S. California Gas Co. S. California Ass'n of Governments, Plaintiff-Intervenors-Appellees v. South Coast Air Quality Mgmt. Dist., Defendant-Intervenor-Appellant, United States Env't Prot. Agency, Coalition for Clean Air Sierra Club, Inc. v. United States Env't Prot. Agency v. S. California Edison Co., Plaintiff-Intervenor-Appellee, 971 F.2d 219 (9th Cir. 1992).publishedStray comments by individual legislators, not otherwise supported by statutory language or committee reports, cannot be attributed to the full body that voted on the bill." In re Kelly, 841 F.2d 908 , 912 n. 3 (9th Cir.1988); United States…
- Coalition for Clean Air v. United States Env't Prot. Agency, 971 F.2d 219 (9th Cir. 1992).publishedStray comments by individual legislators, not otherwise supported by statutory language or committee reports, cannot be attributed to the full body that voted on the bill.” In re Kelly, 841 F.2d 908 , 912 n. 3 (9th Cir.1988); United States…
- United States v. Jesus M. Lopez-Gil, 965 F.2d 1124 (1st Cir. 1992).published Our analysis proceeds on the basis that the controlled substance was not crack. 43 In examining the statute and the Sentencing Guidelines, we find that neither defines the term "cocaine base." 6 The Guidelines' drug equivalency table equat…
- United States v. Reyes, 782 F. Supp. 609 (S.D. Fla. 1992).published Case Authority In further support of his position, Defendant points to a number of opinions that, according to Defendant, have concluded that “crack” is “cocaine base.” The difficulty with the cases cited is that none have said that “cocai…
- United States v. Madison, 781 F. Supp. 281 (S.D.N.Y. 1992).publishedId. at 416. 3 .
- United States v. Arthur L. Hollis, 490 F.3d 1149 (9th Cir. 2007).published See Shaw, 936 F.2d at 415-16 ; see also Brisbane, 367 F.3d at 912 ; United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir.1992).
- Sarei v. Rio Tinto PLC., 221 F. Supp. 2d 1116 (C.D. Cal. 2002).published('Such statements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language and other legislative history, they provide evidence of Congress’ intent.’ ...…)
- United States v. Nguyen, 997 F. Supp. 1281 (C.D. Cal. 1998).published(for purposes of determining base offense level, “cocaine base” means crack or rock cocaine)
- United States v. Darryl Mason, 70 F.3d 1281 (9th Cir. 1995).unpublishedSee United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991); United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir.1990).
- Darrell B. Warren v. United States, 8 F.3d 33 (9th Cir. 1993).unpublished(Congress and Sentencing Commission intended "cocaine base" to include "crack" or "rock cocaine" which is understood to mean cocaine that can be smoked)
- United States v. Patillo, 817 F. Supp. 839 (C.D. Cal. 1993).published(Section 841(b) is not unconstitutionally vague for failing to define “cocaine base)
- United States v. Mercadel, 52 F. App'x 378 (9th Cir. 2002).unpublished(concluding that the term “cocaine base” includes “crack)
- United States v. Randy C. Blount, 974 F.2d 1340 (7th Cir. 1992).unpublished
At page 415 Interpreting the statutory definition of cocaine base13 citing casesrelying on legislative history
- United States v. Carl Edwards, 397 F.3d 570 (7th Cir. 2005).published (relying on legislative history)
- United States v. Bert, 40 F. App'x 466 (9th Cir. 2002).unpublishedUnited States v. Shaw, 936 F.2d 412, 415 (9th Cir.1991). .
- United States v. Muhammed Abdul, 122 F.3d 477 (7th Cir. 1997).published(defining cocaine base under § 2D1.1 in practical terms as cocaine that is veiy pure and smokable)
- United States v. Armando Godinez, 119 F.3d 7 (9th Cir. 1997).unpublished United States v. Shaw, 936 F.2d 412, 414 (9th Cir.1991). 8 Godinez claims that he pled guilty to the sale of 53.7 grams of rock cocaine that was 63% pure and that 63% purity contraband is not "cocaine base" within the meaning of 21 U.S.C.…
- United States v. Rogers, No. 96-4121 (4th Cir. July 1, 1997).unpublishedPrior to 1993, some courts held that cocaine base under the Sentencing Guidelines included all forms of cocaine base, not just crack, see, e.g., United States v. Jackson, 968 F.2d 158, 161-63 (2d Cir. 1992) (forms of cocaine base not pure…
- United States v. Charlie Ward, Sr., 46 F.3d 1129 (4th Cir. 1995).unpublished(cocaine base or crack distinguishable from cocaine hydrochloride by different functions and effects)
- United States v. Jackson, 856 F. Supp. 176 (S.D.N.Y. 1994).publishedThe Guidelines amendment implicitly adopts the Ninth Circuit’s definition of crack as “[vjery pure cocaine intended for smoking *180 rather than inhalation,” United States v. Shaw, 936 F.2d at 415 (citation omitted).
- United States v. Robert Edward Wheeler, 972 F.2d 927 (8th Cir. 1992).published(crack generally refers to very pure cocaine intended for smoking rather than inhalation)
- United States v. Frank Jackson, 968 F.2d 158 (2d Cir. 1992).published Shaw, 936 F.2d at 415 (citations omitted).
- United States v. Reyes, 782 F. Supp. 609 (S.D. Fla. 1992).published ([T]he term cocaine base *613 excludes cocaine hydrochloride ... [but] encompasses ‘crack’____ [T]he Commission must have intended the term ‘cocaine base’ to include ‘craok.’)
Show 2 more citing cases
- United States v. Jorge Roca-Suarez, 628 F. App'x 542 (9th Cir. 2016).unpublishedSee United States v. Shaw, 936 F.2d 412, 415 (9th Cir.1991); U.S.S.G. § 2D1.1, cmt. n. 10, Drug Equivalency Tables (1992).
- United States v. Javier Rodriguez Soto, United States of Am. v. Jose Francisco Valencia, 1 F.3d 920 (9th Cir. 1993).published(presumption that Sentencing Commission intended Guidelines terms to have same meaning as terms Congress used in correlating statutes)
At page 414 Distinguishing cocaine base from cocaine for sentencing purposes8 citing cases“a hydroxylion (oh-) such that it is a 'base,' as the term is used in chemistry.”
- United States v. Raul Rodriguez, 980 F.2d 1375 (11th Cir. 1992).published But see United States v. Shaw, 936 F.2d 412, 414-16 (9th Cir.1991). 6 Rodriguez suggests no alternative meaning but argues that Congress intended the term “cocaine base” to be synonymous with “crack cocaine.” In essence, he asserts that Co…
- United States v. Mickey Polk, 139 F.3d 909 (9th Cir. 1998).unpublished Prior to the 1993 amendments defining "cocaine base" as "crack," we concluded "that Congress and the Commission must have intended the term cocaine base to include crack." See Shaw, 936 F.2d at 416 (internal quotations omitted). 6 Here, Po…
- United States v. Armando Godinez, 119 F.3d 7 (9th Cir. 1997).unpublished United States v. Shaw, 936 F.2d 412, 414 (9th Cir.1991). 8 Godinez claims that he pled guilty to the sale of 53.7 grams of rock cocaine that was 63% pure and that 63% purity contraband is not "cocaine base" within the meaning of 21 U.S.C.…
- United States v. Gregory Island, 86 F.3d 1164 (9th Cir. 1996).unpublishedSee Reyes-Alvarado, 963 F.2d 1184, 1189 (9th Cir.), cert. denied, 506 U.S. 890 (1992); United States v. Shaw, 936 F.2d 412, 414 (9th Cir.1991).
- United States v. Darryl E. JACKSON, 84 F.3d 1154 (9th Cir. 1996).publishedUnited States v. Shaw, 936 F.2d 412, 414-16 (9th Cir.1991), supports this position.
- United States v. Kenneth Eugene White, 24 F.3d 252 (9th Cir. 1994).publishedUnited States v. Shaw, 936 F.2d 412, 414 (9th Cir.1991). 7 White's argument fails.
- United States v. Jesus M. Lopez-Gil, 965 F.2d 1124 (1st Cir. 1992).published Our analysis proceeds on the basis that the controlled substance was not crack. 43 In examining the statute and the Sentencing Guidelines, we find that neither defines the term "cocaine base." 6 The Guidelines' drug equivalency table equat…
- United States v. Arthur L. Hollis, 490 F.3d 1149 (9th Cir. 2007).published See Shaw, 936 F.2d at 415-16 ; see also Brisbane, 367 F.3d at 912 ; United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir.1992).
Other citing cases
- United States v. Mack, 215 F. App'x 649 (9th Cir. 2006).unpublished
- United States v. William D. Davis, United States of Am. v. Curry James Williams, 15 F.3d 902 (9th Cir. 1994).published
- United States v. David Stafford, 258 F.3d 465 (6th Cir. 2001).published
- United States v. Stafford, No. 99-5706 (6th Cir. July 17, 2001).published
- United States v. Cosby, No. 98-1420 (10th Cir. June 15, 1999).unpublished
v.
Jesse Lee SHAW, Defendant-Appellee; UNITED STATES of America, Plaintiff-Appellant, v. Anthony WILSON, Defendant-Appellee
Defendants Shaw and Wilson were convicted for distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). The district court sentenced them as though they had distributed “cocaine” as opposed to “cocaine base” because it held that “cocaine base” only refers to cocaine compounds containing a hydroxylion and the government had failed to show that the rock cocaine involved in this case contained a hydroxylion. The government appeals the sentence on the ground that the district court applied an erroneous definition of “cocaine base.” We vacate and remand.
I
Shaw was charged with three counts of distributing a substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1). Two of the counts were for distributing more than 50 grams, and the total amount charged in the three counts was 223.8 grams. Wilson was charged with one count of distributing a substance containing cocaine base, in the amount of 136 grams.
At trial, the government presented expert testimony that the substance the defendants distributed was cocaine base. The government’s chemist testified that the[*414] substances in question were rock cocaine. He also testified that the cocaine compound in the rock cocaine was cocaine base (C17H21O4N), as compared with cocaine hydrochloride (C17H21O4N.HCI). He explained that one makes rock cocaine by combining cocaine hydrochloride with water and sodium bicarbonate, and that process neutralizes the hydrochloride so that the C17H21O4N.HCI compound is reduced to the C17H21O4N compound. Because the melting point of rock cocaine is much lower than cocaine hydrochloride, the chemist explained that it can be smoked rather than snorted, which allows it to be absorbed into the bloodstream much more quickly than cocaine hydrochloride.
The district court instructed the jury that to find the defendants guilty, it did not need to find that the defendants knew that the substance they distributed was cocaine base as long as it found that they intentionally distributed some controlled substance. The jury found both Shaw and Wilson guilty.
At sentencing, the defendants argued that they could only be sentenced for distributing “cocaine” and not “cocaine base” because the government’s chemist had failed to distinguish adequately between the two when he testified that the substance involved was cocaine base. The penalties for distributing cocaine base are much more severe than the penalties for distributing cocaine. Because both Shaw and Wilson distributed between 50 and 500 grams of the controlled substance, they would be subject to a 10 year statutory minimum sentence if the substance were cocaine base, 21 U.S.C. § 841(b)(l)(A)(iii), but they would not be subject to any statutory minimum if it were cocaine, 21 U.S.C. § 841(b)(1)(C). Under the sentencing guidelines, Shaw’s and Wilson’s base offense levels would be 84 and 32, respectively, if the substance were cocaine base, but they would be 20 and 18, respectively, if it were cocaine. U.S.S.G. § 2D1.1.
Shaw and Wilson contend that the government failed to establish that the substance was cocaine base because they claim that the legal definition of “cocaine base” is a cocaine compound containing a hydrox-ylion (OH — ) such that it is a “base,” as that term is used in chemistry. Because the government’s expert witness did not say anything about the presence of a hy-droxylion, the defendants contend they could only be sentenced under the lesser penalties for cocaine rather than the higher penalties for cocaine base.
The government responds that defining cocaine base as a cocaine compound containing a hydroxylion is not the only way it can be defined. The government’s position is that so long as cocaine base is objectively distinguished from cocaine hydrochloride, a defendant may be sentenced for distributing cocaine base. In this case, the chemist testified that cocaine base has a distinguishable chemical formula and has different properties from cocaine hydrochloride, and he identified the substance involved here as cocaine base. Thus, the government contends, the defendants are subject to the higher penalties for cocaine base.
The district court agreed with the defendants’ definition of cocaine base and concluded that they could only be sentenced for distributing cocaine because the evidence did not establish that the substance in this case contained a hydroxylion. It therefore sentenced Shaw to 78 months, at the top of the guideline range for an offense level of 20 and a criminal history category of V, and it sentenced Wilson to 35 months, in the middle of the range for an offense level of 18 and a criminal history category of II. The government appeals.
II
The government may appeal the district court’s sentence because it was imposed in violation of 21 U.S.C. § 841(b)(l)(A)(iii) and because it was imposed as the result of an incorrect application of the guidelines. 18 U.S.C. § 3742(b). The interpretation of the term “cocaine base” in 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1 is a legal question, which we review de novo. See United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.) (definition of “lascivious” is matter of law reviewed de novo), cert. denied, 484[*415] U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987).
The defendants rely on two cases to show that the legal definition of cocaine base is a cocaine compound that contains a hydroxylion. First, the District of Columbia Circuit held that 21 U.S.C. § 841(b) is not unconstitutionally vague for failing to define cocaine base. United States v. Brown, 859 F.2d 974 (D.C.Cir.1988) (per curiam). Although the court did not expressly state what the correct definition of cocaine base is, it stated that the government had adopted the nomenclature of organic chemistry and defined cocaine base as any cocaine with the hydroxyl radical (OH-). [1] Id. at 975-76. The court reasoned that this chemical definition excludes salt forms of cocaine and therefore is not unconstitutionally vague because it performs a limiting function. Id. at 976.
We similarly held that 21 U.S.C. § 841(b) was not unconstitutionally vague because the expert testimony in the case indicated that the term “cocaine base” excludes cocaine hydrochloride. United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir.1990). In a footnote, the Van Hawkins opinion stated: “The term ‘cocaine base’ is cocaine that contains an active hydroxylion. As such, it is distinguished from cocaine salts. The term cocaine base encompasses ‘crack.’ ” Id. at 854 n. 2.
The defendants argue that these cases definitively establish that the definition of cocaine base is cocaine that contains a hy-droxylion. We disagree. The holding of both of these cases is simply that 21 U.S.C. § 841(b) is not unconstitutionally vague as long as cocaine base is defined so as to exclude cocaine salts. That holding, however, does not answer the question of what the correct definition of cocaine base is as a matter of statutory interpretation. We face that question for the first time in this case.
We construe the statute and the guidelines to be consistent with each other in their use of the term “cocaine base.” The Sentencing Commission has explained that it “used the sentences provided in, and equivalences derived from, the statute (21 U.S.C. § 841(b)(1)), as the primary basis for the guideline sentences.” U.S.S.G. § 2D1.1, comment, (n.10). Thus, we presume that the Commission intended the terms they used to have the same meanings as the terms Congress used.
Neither the statute nor the guideline define “cocaine base.” The commentary to the guideline, however, equates cocaine base with “crack.” U.S.S.G. § 2D1.1, comment, (n.10, Drug Equivalency Tables) (“1 gm of Cocaine Base (‘Crack’) equals 100 gm of cocaine/20 gm of heroin”). The term “crack” generally refers to “[v]ery pure cocaine intended for smoking rather than inhalation.” New Dictionary of American Slang 85 (R. Chapman ed.1986). It is synonymous with “rock” cocaine. Id. at 361 (defining “rock” as “[a] small cube of very pure cocaine, intended for smoking rather than inhalation”).
The legislative history of 21 U.S.C. § 841(b) is consistent with the Commission’s interpretation. Congress amended § 841(b) in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1002(2), 100 Stat. 3207, 3207-2, which was an omnibus act incorporating a number of more specific bills. The Senate and the House each had a version of a bill to amend 21 U.S.C. § 841(b). The House version provided tougher penalties for “cocaine freebase,” H.R. 5394, 99th Cong., 2d Sess. § 101 (1986), while the Senate version provided penalties for “cocaine base,” S. 2878, 99th Cong., 2d Sess. § 1002, 132 Cong.Rec. S13649 (daily ed. Sept. 25, 1986). Congress ultimately enacted the Senate version by incorporating it into H.R. 5484, which became the Anti-Drug Abuse Act of 1986. See 132 Cong.Rec. H11219-20 (daily ed. Oct. 17, 1986).
To “freebase” means to “use cocaine by heating it and inhaling the smoke.” New Dictionary of American Slang at 147.[*416] Thus, the House version appears consistent with the Commission’s explanation because “cocaine freebase” logically would refer to cocaine that could be smoked. The House Committee on the Judiciary also gave that definition to “cocaine freebase.” In the same period when the House was considering passage of the amendments to § 841(b), the Committee urged passage of a resolution calling for a White House conference on drug abuse and explained:
In the summer of 1986, the wave of the cocaine abuse epidemic which had been growing for a decade began to crash upon American cities in the form of “crack.” Crack, the street name for cocaine freebase, a preparation of cocaine hydrochloride and sodium bicarbonate, can be smoked and consequently produces intense moments of the cocaine “rush,”....
H.R.Rep. No. 99-846, 99th Cong., 2d Sess. 4 (1986).
Nothing in the legislative history indicates that the Senate version intended a different meaning for “cocaine base.” Indeed, statements made by sponsors of the legislation in both houses indicate concern primarily with the crack epidemic, and they describe crack as cocaine that is smoked rather than snorted. For example, Representative Frank Annunzio explained, “Today we are seeing a new impetus to cocaine generated by the so-called ‘crack,’ which is smoked rather than snorted. It is relatively inexpensive and highly dangerous.” 132 Cong.Rec. H6544 (daily ed. Sept. 10, 1986). Similarly, Senator Chic Hecht urged support for S. 2878:
I wish to point out to my colleagues that the escalation of drug abuse is shown not only by the number of this scourge’s victims, but may also be measured in the potency and availability of today’s illicit drugs. The purified form of cocaine known as “crack,” for example, has lead to a number of drug-related deaths.
Id. at S13770 (Sept. 26, 1986).
“Such statements by individual legislators should not be given controlling effect, but when they are consistent with the statutory language and other legislative history, they provide evidence of Congress’ intent.” Brock v. Pierce County, 476 U.S. 253, 263, 106 S.Ct. 1834, 1840-41, 90 L.Ed.2d 248 (1986). In this case, the sponsors’ statements are consistent with everything else we can deduce from the legislative history, dictionary definitions, and the Sentencing Commission’s interpretation. Indeed, we have seen no statements indicating any different interpretation of the term “cocaine base.”
Of particular importance to this case, we have seen no statements indicating an interpretation of “cocaine base” as cocaine that contains a hydroxylion. Nor have we seen any statements indicating that “cocaine base” refers to cocaine that is a “base” for chemistry purposes. We conclude that neither Congress nor the Commission intended the term “cocaine base” to be defined by the presence of a hydroxy-lion or by its testing basic rather than acidic.
Instead, we conclude that Congress and the Commission must have intended the term “cocaine base” to include “crack,” or “rock cocaine,” which we understand to mean cocaine that can be smoked, unlike cocaine hydrochloride. Because “cocaine base” is thus distinguishable from “cocaine” based on its different functions and effects, this interpretation of the statute and guideline is consistent with the holding in Van Hawkins, 899 F.2d 852, that 21 U.S.C. § 841(b) is not unconstitutionally vague so long as cocaine base is objectively distinguishable from cocaine hydrochloride.
The district court therefore erred in defining “cocaine base” to mean cocaine that contains a hydroxylion. We remand to give the district court the opportunity to decide if the facts in evidence establish that the defendants distributed a substance containing “cocaine base,” as we have defined that term.
VACATED AND REMANDED.
. Courts, as well as the parties, use the terms "hydroxyl radical” and "hydroxylion" interchangeably to refer to OH — .