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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20456
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RENARD LEON CHERRY,
a/k/a Jimmy Dean, In Custody,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
( April 11, 1995 )
Before WISDOM, KING, and GARWOOD, Circuit Judges.
WISDOM, Circuit Judge.
The defendant-appellant, Remard Leon Cherry, a.k.a.
"Jimmy Dean", appeals from his conviction of conspiracy to possess
with the intent to distribute crack cocaine, of possession with the
intent to distribute crack cocaine, and of use of a firearm during
the commission of a drug trafficking crime. We affirm the
defendant's conviction and sentence.
I
Following a traffic stop in October 1993, Constable Craig
Lawson of the Montgomery County, Texas police department arrested

Bervick Williams, and seized from him a marijuana-laced cigar and
half an ounce of crack cocaine. Williams told Lawson that he had
purchased the crack cocaine that morning from "Jimmy Dean" at 5900
Selinsky Street #99, in Houston, Texas.
In cooperation with the Montgomery County police,
Williams made a controlled delivery of the crack cocaine to a man
in Livingston, Texas. By written statement, Williams said that he
had purchased the crack cocaine from Jimmy Dean, a Houston crack
dealer. Williams said he had known Jimmy Dean for about two and a
half years, that Jimmy Dean sells crack cocaine, and that he bought
crack cocaine from Jimmy Dean nearly every day. Williams said that
he had seen as much as a kilo of cocaine in a bowl in Jimmy Dean's
kitchen cabinet. Williams said that Jimmy Dean owned a black
Chevrolet Stepside truck, two Lexus, a Jeep Cherokee, and a blue
five-liter-engine Mustang. Williams also said that Jimmy Dean kept
a Rottweiller in the apartment to guard the cocaine. In addition,
Williams orally described Jimmy Dean as being 26 or 27 years old,
5'9" to 5'10", around 275 pounds, medium complexioned, with a short
afro and a gold tooth. Williams also said that he had seen about
a kilo of cocaine at 5900 Selinsky #99 that day, October 13.
Officer Lawson relayed this information to Officer Jimmy
Turpin, a Houston Narcotics Officer. Officer Turpin went to 5900
Selinsky Street and found the building to look as Williams had
described it. Apartment records listed Remard Leon Cherry as the
lessee of 5900 Selinsky Street #99. A criminal history report on
"Jimmy Dean" from the Houston Police Department ("HPD") computer
2

revealed that Remard Leon Cherry used "Jimmy Dean" as an alias and
had occupied at one time the apartment at 5900 Selinsky Street #79.
Based on this information and his own observations,
Officer Turpin drafted a search warrant for the apartment, and a
magistrate signed the warrant on October 14, 1993. Following the
signing of the warrant, Houston narcotics officers placed the
apartment on surveillance. In the afternoon of October 14, 1993,
one of the officers saw a black Chevrolet Stepside truck arrive at
the apartment complex. An African-American male entered apartment
#99 with a key, and five minutes later left the apartment in the
truck. Officers followed the truck to various locations. At one
of the stops, officers were able to observe the driver and found
his physical appearance similar to the description given by
Williams to Officer Lawson. The defendant eventually went to 8601
Broadway, and entered apartment #4247. Parked outside the
apartment was a blue five-liter-engine Mustang. After five
minutes, the defendant stepped out of the apartment, appeared to
roll a marijuana cigarette, and went back to the apartment. One
minute later he left the apartment holding what looked like a
cigar. He drove away, and officers stopped the truck as it left
the apartment complex. After the officers discovered a marijuana
cigar on the floorboard of the truck, they arrested Cherry, read
him his Miranda rights, and waived his Miranda rights.
The officers took the defendant to 5900 Selinsky #99 and
opened the door with the defendant's key. The defendant tied up
the Rottweiller, and the officers seized from the apartment a total
3

of 134.9 grams of crack cocaine and 4.5 kilos of cocaine, of which
3.2 kilos were pure cocaine.
The defendant entered a plea of not guilty and filed a
motion to suppress the evidence seized from 5900 Selinsky #99, on
the ground that the search warrant was invalid. The defendant
argued that the warrant affidavit contained misrepresentations and
that Officer Turpin intentionally had misled the court by
misdescribing the defendant's physical characteristics and his
place of residence.
The district court concluded that the search warrant was
valid and denied the defendant's motion to suppress. So that he
could appeal the ruling on the motion to suppress, the defendant
agreed to waive a jury and to have his case tried on stipulated
facts. The court found Cherry guilty of conspiracy to possess and
distribute crack cocaine, of possession with intent to distribute
crack cocaine, and of use of a firearm during the commission of a
drug trafficking crime. Before sentencing, the defendant filed an
objection to the presentencing report, arguing that the Sentencing
Guidelines' penalty scheme violated his Fifth Amendment right to
equal protection of the laws. The court overruled the objection
and sentenced him in the middle of the Guideline range to 166
months imprisonment on counts one and two to run concurrently, five
years imprisonment to run consecutively on count three, and five
years of supervised release. The defendant appeals his conviction
and sentence.
4

II
The defendant raises two arguments on appeal. First, the
defendant argues that the search warrant was invalid and that the
district court erred in denying his motion to suppress the
evidence. Second, the defendant argues that the provisions of 21
U.S.C. � 841(a)(1) and � 2D1.1 of the Sentencing Guidelines violate
the Fifth Amendment's guarantee of equal protection because the
provisions punish far more severely the possession of crack cocaine
than the possession of ordinary cocaine. We affirm the defendant's
conviction and sentence.
A
The defendant's first argument on appeal challenges the
validity of the search warrant and contends that the district court
erred in denying the defendant's motion to suppress the evidence.
The defendant argues that the affidavit supporting the warrant to
search 5900 Selinsky #99 contained intentional misrepresentations.
The defendant argues that the affiant, with the intent to deceive
the court, intentionally misrepresented the defendant's physical
appearance and home address. The district court concluded that the
challenged statements were not misrepresentations and denied the
motion to suppress. We agree with the conclusion of the district
court.
In determining whether a search warrant establishes
probable cause, a court must disregard any intentional or reckless
5

misrepresentations made by the affiant in the affidavit.1 A
statement in a warrant affidavit is not false, however, merely
because it characterizes or summarizes facts in a particular way;
if a statement can be read as true, it is not a misrepresentation.2
Further, a search warrant is valid, even if it contains a
misrepresentation, if after striking the misrepresentation, there
remains sufficient content to support a finding of probable cause.3
Probable cause is evaluated in the totality of the circumstances.4
The defendant argues that the affidavit contains
misrepresentations, and that if the misrepresentations were deleted
from the affidavit, the affidavit would not have provided probable
cause to support the warrant to search 5900 Selinsky #99. The
defendant's argument rests on discrepancies between Officer
Turpin's affidavit and the HPD criminal history report regarding
the defendant's physical appearance and his residence address.
Officer Turpin's affidavit describes the defendant as an
African-American male, 26 to 27 years old, 5'9" to 5'10" tall, 275
to 280 pounds, medium complexioned, with a short afro and one gold
tooth. The HPD criminal history report describes the defendant as
an African-American male born in 1970, 6' tall, 185 pounds, with a
1
United States v. Singer, 970 F.2d 1414, 1416 (5th
Cir. 1992).
2
Id. at 1417 (quoting United States v. Hare, 772 F.2d
139, 141 (5th Cir. 1985)).
3
United States v. Privette, 947 F.2d 1259, 1261 (5th
Cir. 1991), cert. denied, 112 S. Ct. 1279 (1992).
4
Id. (citing Illinois v. Gates, 462 U.S. 213 (1983).
6

medium complexion and black hair. In reality, the defendant has
three gold teeth.
Although the informant misestimated Cherry's height and
weight, the informant correctly estimated and described the
defendant in many other respects. Williams correctly stated that
Cherry is an African-American male, has a gold tooth, is in his
mid-twenties, has short black hair, and uses the alias "Jimmy
Dean". Williams correctly described the apartment at 5900 Selinsky
and all of the cars and trucks that the police observed during
their surveillance. We conclude that the informant's misestimation
of the defendant's physical appearance is not an intentional
misrepresentation.
The second alleged misrepresentation stems from a
discrepancy between the affidavit and the HPD criminal history
report's description of the defendant's home address. Officer
Turpin's affidavit states the defendant's home address as 5900
Selinsky #79, and the defendant argues that this is intentionally
deceptive because that was not his home address at the time the
warrant was issued. The HPD criminal history report listed the
defendant's home addresses as 5900 Selinsky #118 on July 4, 1989,
5901 Selinsky #79 on February 25, 1990, and 5900 Selinsky in
October and November 1990. The district court concluded that this
discrepancy was not deceptive, and we agree. We can read Officer
Turpin's statement as true as a way to link the defendant to the
location of 5900 Selinsky. Accordingly, we conclude that neither
the physical description of the defendant's height and weight nor
7

the location of his home address is an intentional or reckless
misrepresentation of fact.
The defendant also makes challenges the affidavit on
matters that he did not raise in the district court. The defendant
contends that Williams's written statement does not support Officer
Turpin's statements in the affidavit, because Williams's written
statement did not reflect the date he saw a kilo of cocaine in the
defendant's apartment, did not give the apartment number of the
defendant's residence, and did not provide a physical description
of the defendant. The defendant's failure to raise this argument
in the district court forfeits it on appeal unless there is plain
error.5
Williams provided both oral and written information to
Officer Turpin. Turpin interviewed him more than once, including
the day after Williams made his written statement. The defendant's
general assertion that the written statement in some way does not
provide support for Officer Turpin's affidavit does not rise to the
level of plain error, and we decline to review the merits of this
argument.6
5
United States v. Maldonado, 42 F.3d 906 (5th Cir.
1995); United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994)
(en banc), cert. denied, 115 S. Ct. 1266 (1995).
6
To be reviewable under the plain error standard,
three requirements must be met: first, there must be error, a
deviation from a legal rule in the absence of a valid waiver.
Second, the error must be plain; it must clear and obvious. Third,
the error must affect substantial rights, and the defendant has the
burden to show that the error was prejudicial. Finally, even if
the elements of plain error are met, review of the alleged error is
discretionary; an appellate court may, but is not required to,
exercise its discretion to correct the assigned error. Calverley,
8

B
The defendant's second argument on appeal contends that
his sentence was imposed in violation of the law and asks this
Court to reverse his sentence. The defendant was sentenced in
accordance with U.S.S.G. � 2D1.1(c)(3), and like all the sections
of the Drug Quantity Table of the Sentencing Guidelines, section
2D1.1(c)(3) punishes the possession of one gram of crack cocaine
the same as it punishes the possession of one hundred times that
quantity, 100 grams, of powder cocaine. This 100 to one ratio
means that for any given quantity of cocaine, sentences involving
crack cocaine are significantly longer and much more severe than
those for like offenses involving powder cocaine.
The defendant filed a written objection to the
presentencing report, contending that � 2D1.1 violates the Fifth
Amendment's guarantee of equal protection. The defendant argues
that the penalty scheme disproportionately burdens African-
Americans and that Congress enacted the scheme with the intent to
discriminate on the basis of race. The district judge overruled
the objection, stating that he was "bound by what Congress has done
before".7 On appeal, the defendant asks this Court to strictly
scrutinize the penalty scheme. We review the district court's
legal conclusions de novo, and will uphold the district court's
37 F.3d at 162-64. See also United States v. Maldonado, 42 F.3d
906 (5th Cir. 1995).
7
4 Record at 3.
9

factual finding if it is supported by substantial evidence.8
It is true that the Sentencing Guidelines punish far more
severely the commission of crimes involving crack cocaine than
those involving other forms of cocaine. It also may be true that
African-American criminal defendants are disproportionately
affected by the crack cocaine penalties. In 1992, over ninety
percent of the defendants federally prosecuted for crimes involving
crack cocaine were African-American.9 In 1993, over eighty-eight
percent of federal crack cocaine distribution convictions involved
African-American defendants.10
Disproportionate impact alone, however, is not sufficient
to trigger the application of strict scrutiny to this penalty
scheme. In order to trigger strict scrutiny of a facially neutral
law that allegedly discriminates on a racial basis, a litigant must
demonstrate that the law is the product of a racially
8
United States v. Michelletti, 13 F.3d 838, 841 (5th
Cir.), cert. denied, 115 S. Ct. 102 (1994). The government
contends that the defendant failed to raise "the same specific
argument in the trial court that he raised on appeal", and that
under Calverley, 37 F.3d at 162-64, we must review this argument
for plain error. We do not agree. The defendant's written
objections to the presentence report are in the record. Unlike the
arguments in Calverley, which were never presented to the district
court, the defendant in this case raised the objection in the
district court. The defendant preserved the issue for appeal, and
we will address the merits of his argument.
9
United States v. McMurray, 833 F. Supp. 1454,
1460 (D. Neb. 1993), aff'd, 34 F.3d 1405 (8th Cir. 1994), cert.
denied, 115 S. Ct. 1164 (1995). See also Dennis Cauchon, Balanced
Justice? USA Today, May 26, 1993 at A1 (citing the U.S. Sentencing
Commission).
10
U.S. Sentencing Commission, Special Report to the
Congress: Cocaine and Federal Sentencing Policy, at xi (Feb.
1995).
10

discriminatory purpose, and this is no easy task. The ideal way to
demonstrate a racially discriminatory purpose is, of course,
through direct evidence of an intent to discriminate. We do not
recall instances of legislators willing to declare racially
motivated reasons for their legislative action. Things being what
they are, we allow a litigant latitude to show discriminatory
intent through circumstantial evidence, by demonstrating that "the
totality of the relevant facts gives rise to an inference of
discriminatory purpose".11 Foreseeability of a disparate impact,12
the historical background of a law,13 a clear pattern that emerges
from the effect of the law, unexplainable on grounds other than
race,14 and disparate impact15 are all relevant to the determination
of whether an invidious discriminatory animus motivated the
enactment of a law. Impact alone, however, is not determinative,16
and demonstrating a racially discriminatory intent is a difficult
burden to bear. Absent a showing of discriminatory purpose, a law
is subject to the test of rationality.17
11
Washington v. Davis, 426 U.S. 229, 242 (1976).
12
Personnel Administrator v. Feeney, 442 U.S. 256, 279
n.25 (1979).
13
Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252, 267 (1977).
14
Gomillion v. Lightfoot, 364 U.S. 339 (1960).
15
Washington v. Davis, 426 U.S. at 242.
16
Arlington Heights, 429 U.S. at 267.
17
United States v. Galloway, 951 F.2d 64, 65-66 (5th
Cir. 1992) (quoting Rogers v. Lodge, 458 U.S. 613, 617 n.5 (1982)).
11

The defendant contends that the enhanced penalty scheme
of � 2D1.1 is a product of racial animus. In addition to the
obvious disproportionate impact that � 2D1.1 has on African-
American criminal defendants, the defendant contends that a media
"frenzy" over African-Americans' use of crack cocaine in the inner
cities and pressure from the constituency prompted the enactment of
the enhanced penalty scheme. The defendant also argues that
unconscious bias and a predisposition to racism influenced the
enactment of the enhanced penalty scheme.
We find these allegations insufficient to demonstrate
that a discriminatory purpose underlies the penalty scheme. It is
within the bounds of possibility that the media, the constituency,
and conscious or subconscious racism had some effect on the
enactment of the penalty scheme of � 2D1.1, but the defendant does
nothing to link these assertions to the enactment of the law.
Without more, we cannot say that these assertions demonstrate a
racially discriminatory intent behind the penalty scheme. The
penalty scheme is subject to rational basis review.
This penalty scheme will survive the equal protection
challenge if this Court finds the scheme rationally related to a
legitimate government purpose.18 The government asserts that it is
reasonable to create different punishments for crimes involving
crack cocaine from those involving powder cocaine because crack
cocaine can be a more powerful drug than powder cocaine. The
government asserts that the purpose of the penalty scheme is to
18
Galloway, 951 F.2d at 66.
12

protect the public welfare and that enhancing the penalty for
possession of crack cocaine will further that interest.
After carefully examining the record, we are convinced
that the legislation at issue is in fact rationally based.
Congress had before it a substantial amount of scientific evidence
when it enacted the crack cocaine penalty scheme. Congress
considered medical testimony that cocaine in any form produces the
same effects, but that the effects differ depending on how the
cocaine is administered. Smoking crack cocaine produces a maximum
psychotropic effect as quickly as one minute after administration.
The rapidity of ingestion elicits an extreme response and
contributes to the subsequent craving for the drug. Because of the
rapidity of ingestion, crack cocaine is considered more addictive
than powder cocaine. Crack cocaine is associated with systematic
crime related to the drug's trafficking and distribution. Finally,
crack cocaine can cause severe side effects, such as a stroke,
paranoia, depression, and seizures.19
To exacerbate matters, small doses of crack cocaine are
sufficient to cause an extreme response. For crack cocaine
penalties to have any enforcement and deterrent value, it is
rational to conclude that the penalties must reach the small
19
See Matthew F. Leitman, A Proposed Standard of Equal
Protection Review for Classifications Within the Criminal Justice
System that Have a Racially Disparate Impact: A Case Study of the
Federal Sentencing Guidelines' Classification Between Crack and
Powder Cocaine, 25 U. Tol. L. Rev. 215 (1994) for a discussion of
the hearing held by the Senate's Permanent Subcommittee on
Investigations of the Committee on Governmental Affairs of July 15,
1986, 99th Cong., 2d Sess. (1986).
13

amounts of crack cocaine possessed by many of those who buy, use,
and sell crack cocaine. On earlier occasions, this Court has
concluded that crack cocaine is a different drug from cocaine, and
that Congress need not treat dissimilar drugs similarly.20
After a close examination of the record, this Court is
convinced that the scheme of � 2D1.1 is rationally related to
Congress's legitimate interest in protecting the general welfare.
The 100 to one ratio is extreme, but is not the province of this
Court to second-guess Congress's chosen penalty. That is a
discretionary legislative judgment for Congress and the Sentencing
Commission to make.21 Our review is limited to whether the penalty
has a rational basis. We conclude that it does, and we affirm the
judgment of the district court.
20
United States v. Thomas, 932 F.2d 1085, 1090 (5th
Cir. 1991), cert. denied, 502 U.S. 895 (1991); United States v.
Metcalf, 898 F.2d 43, 46 (5th Cir. 1990).
21
In 1994, Congress directed the Sentencing Commission
to examine the federal sentencing scheme and to provide
recommendations for retention or modification of the policy. The
Sentencing Commission's report, transmitted to Congress on February
28, 1995, concludes that the 100 to one ratio is too great, and
that the penalty scheme should be amended. The Commission took
into account the "inescapable conclusion" that African-Americans
comprise the largest percentage of those affected by the penalties
associated with crack cocaine, and in the months ahead plans to
refine the drug guidelines to account for the harms related to
cocaine without the "difficulties associated with an automatic 100-
to-1 ratio". U.S. Sentencing Commission, Special Report to the
Congress: Cocaine and Federal Sentencing Policy at xi, xv (1995).
14