
    UNITED STATES of America v. Robert K. CULPEPPER.
    Criminal A. No. 1:95-CR-15-1-CC.
    United States District Court, N.D. Georgia, Atlanta Division.
    Nov. 29, 1995.
    Gregory Stuart Smith and Mildred Han-kins Geckler, Federal Defender Program, Atlanta, GA, for Robert K. Culpepper.
    Joseph Andre Plummer, Office of United States Attorney, Organized Crime Strike Force, Atlanta, GA, for the U.S.
   ORDER

COOPER, District Judge.

Pending before the court in the above-styled case is Defendant’s Motion to Declare the Sentencing Provisions of 21 U.S.C. § 841 and 2D1.1 of the Sentencing Guidelines as to Cocaine Base Unconstitutional [13-1]. Defendant contends that the sentencing provisions in § 841 and 2D1.1 as they relate to “cocaine base” are unconstitutionally vague and violate the equal protection clause of the United States Constitution. In the alternative, defendant contends that the sentencing provisions are ambiguous and must be interpreted in defendant’s favor under the rule of lenity. Magistrate Judge Joel Feldman issued a report recommending that defendant’s motion be denied.

On November 1, 1995, this court held a hearing on defendant’s motion, including testimony from an expert witness from the government. In addition, the evidentiary hearing conducted by Judge J. Owen Forrester is a part of the record in this case and includes the testimony of four experts. After careful review of the entire evidentiary record, this court declines to adopt the magistrate judge’s recommendation.

I. FINDINGS OF FACT

The molecular formula for cocaine is C17 H21 N4. The molecular formula for cocaine base is Cl 7 H21 N4. In the scientific community, the term “cocaine” is synonymous with the term “cocaine base.” Cocaine hydrochloride is often called powdered cocaine and is a salt of cocaine. Cocaine or cocaine base can be manufactured by mixing cocaine hydrochloride, water and bicarbonate soda (baking soda) and heating the mixture to a boil. The result yields what is known on the street as “crack.” The term “crack” does not have a scientific meaning. Crack often appears in a lumpy form but can be ground into a powder form. Cocaine hydrochloride is usually in powder form, but it can sometimes have a lumpy appearance.

II. CONCLUSIONS OF LAW

21 U.S.C. § 841 provides different penalties for cocaine and cocaine base. The rule of lenity requires a sentencing court to impose the lesser penalty where there is ambiguity as to the penalty Congress intended to impose. The rule of lenity is to be applied only when there is actual statutory ambiguity. Bijulco v. United States, 447 U.S. 381, 386, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). The terms “cocaine base” and “cocaine” are synonymous and as a result, the penalty provisions of § 841 are scientifically meaningless. Section 841 provides for different penalties for what is chemically the same substance. Section 2D1.1 of the Sentencing Guidelines provides that for the purposes of the guidelines, cocaine base means crack. The section further provides that crack is the “street name for cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate and usually appearing in a lumpy, rocklike form.” The government did not establish that the substance involved in this case was prepared or manufactured with sodium bicarbonate. It is the government’s burden to prove beyond a reasonable doubt an unambiguous statute. The government did not meet its burden, and the court concludes that there is actual statutory ambiguity as to the reach of § 841 and the penalty to be imposed. Therefore, applying the rule of lenity, the enhanced penalty provision for cocaine base should not be imposed.

III. CONCLUSION

After careful review of the Magistrate Judge’s Report and Recommendation, and the objections thereto, the court declines to adopt the report of the Magistrate Judge. Defendant’s motion [13-1] is GRANTED on statutory grounds.

SO ORDERED. 
      
      . Even assuming that the Guidelines’ definition of cocaine base is adequate, the substance does not meet the definition because there is no evidence that it was manufactured with sodium bicarbonate.
     