United States v. Bell , 237 F. App'x 942 ( 2007 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  June 28, 2007
    Charles R. Fulbruge III
    Clerk
    No. 06-50369
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    EUGENE BELL,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 7:05-CR-168-2
    --------------------
    Before JOLLY, GARZA, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Eugene Bell appeals the judgment of conviction and sentence
    for conspiracy to possess with intent to distribute more than 50
    grams of crack cocaine in violation of 
    21 U.S.C. §§ 841
    (a),
    (b)(1)(A), 846.   Finding no error, we affirm.
    Bell’s first argument is that there was insufficient
    evidence to establish that any substance in excess of the 10.5
    grams that was subjected to laboratory analysis was the crack
    form of cocaine base.   According to Bell, scientific evidence
    “has been required” to establish the identity of a controlled
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 06-50369
    -2-
    substance.   This argument is patently without merit.   It is
    established that circumstantial evidence, supported by lay
    testimony, may be sufficient to establish the identity of a
    controlled substance, and we have expressly rejected the argument
    that scientific evidence is required.     See United States v.
    Brown, 
    887 F.2d 537
    , 541 (5th Cir. 1989); see also United States
    v. Osgood, 
    794 F.2d 1087
    , 1095 (5th Cir. 1986).    The cases on
    which Bell relies for the proposition that scientific evidence
    “has been required” do not support that proposition; each case
    simply held that expert testimony or scientific evidence was
    sufficient to establish the identity of a substance.     See United
    States v. Butler, 
    988 F.2d 537
    , 542-43 (5th Cir. 1993); United
    States v. Lewis, 
    113 F.3d 487
    , 492 (3d Cir. 1997); United States
    v. Johnson, 
    12 F.3d 760
    , 765-66 (8th Cir. 1993).
    There was ample circumstantial and lay evidence to show that
    the substance involved was crack cocaine.    Lesia Samuels and
    Jessie Brooks both testified that they purchased crack from Bell;
    the price they paid was consistent with the going price of crack;
    there was evidence that on at least one occasion, Bell prepared
    crack consistent with testimony regarding how crack is prepared;
    Samuels obtained 12 cookies, consistent with crack preparation;
    and the 10.5 grams purchased by Samuels from Brooks was
    determined by testing to be crack cocaine.    The jury was free to
    infer from all the evidence that Bell was involved in the sale of
    the crack form of cocaine base.   See Brown, 
    887 F.2d at 542
    .
    No. 06-50369
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    Bell’s argument that the district court erred in attributing
    168 grams of crack to him at sentencing in the absent of
    scientific testimony to establish the nature of the substance
    likewise fails.   Bell did not raise this argument in the district
    court, confining his objection to the drug quantity determination
    rather than the identity of the substance.   Accordingly, we
    review for plain error.   See United States v. Garcia-Mendez, 
    420 F.3d 454
    , 456 (5th Cir. 2005), cert. denied, 
    126 S. Ct. 1398
    (2006).   For the same reasons set forth with respect to the
    evidence supporting the conviction, Bell’s argument fails.     No
    scientific evidence was required, and there was ample evidence to
    support a finding that the substance was crack.
    In his final point of error, Bell argues that the
    application of the Sentencing Guidelines as advisory in light of
    United States v. Booker, 
    543 U.S. 220
     (2005), violates his Sixth
    Amendment and Due Process rights and the Ex Post Facto Clause.
    Bell blue brief, 17-21.   As Bell concedes, because he raises this
    issue for the first time on appeal, review is for plain error.
    
    Id. at 18
    ; see United States v. Mares, 
    402 F.3d 511
    , 520 (5th
    Cir. 2005).
    Bell’s ex post facto and due process arguments are
    foreclosed by our decision in United States v. Austin, 
    432 F.3d 598
    , 599-600 (5th Cir. 2005).   Further, as the district court
    properly applied the Guidelines as advisory, there was no Sixth
    Amendment violation.   See Booker, 543 U.S. at 245, 259-60.    Bell
    No. 06-50369
    -4-
    concedes that Austin forecloses his challenge to the retroactive
    application of Booker but raises it to preserve it for possible
    review by the Supreme Court.
    AFFIRMED.