United States v. Linton, James S. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-3799
United States of America,
Plaintiff-Appellee,
v.
James S. Linton,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 93-CR-137--Thomas J. Curran, Judge.
Argued November 30, 2000--Decided December 15, 2000
Before Flaum, Chief Judge, and Easterbrook and Rovner,
Circuit Judges.
Flaum, Chief Judge. James S. Linton challenges
his sentence based upon possession of crack,
arguing that the government did not prove that he
possessed that substance rather than a different
form of cocaine base. For the reasons stated
herein, we affirm.
I. Background
On December 8, 1993 Linton filed a conditional
guilty plea/1 to possession with intent to
distribute a mixture containing in excess of five
grams of cocaine base in violation of 21 U.S.C.
sec. 841(a)(1). The district court accepted this
plea on January 10, 1994 and held a sentencing
hearing on April 6. The court calculated Linton’s
term of imprisonment as though he had "cocaine
base" and sentenced him to 140 months. Linton’s
plea agreement, the sentencing report, and the
statements made during the hearings regarding the
guilty plea and original sentencing refer to the
substance Linton possessed only as "cocaine
base."
Linton filed a 28 U.S.C. sec. 2255 motion on
August 26, 1996. On July 2, 1998, the district
court granted this motion in part by vacating
Linton’s sentence, though not his conviction. The
district court found that the government had not
shown that Linton possessed "crack," which is
required to apply the enhancement for "Cocaine
Base" under Sentencing Guidelines sec. 2D1.1(c).
See United States v. Adams, 125 F.3d 586, 591
(7th Cir. 1997).
The district court held a resentencing hearing
during two dates in October, 1998. The substance
seized from Linton was no longer available to be
examined. The government’s evidence consisted of
the testimony of Sergeant Michael Hartert, one of
the police officers who searched Linton’s
apartment, and Roger Stahlke, a forensic
scientist of the Wisconsin State Crime
Laboratory. Both were experienced in identifying
crack and other forms of cocaine base. Hartert
verified that he had prepared an inventory report
of the property taken from Linton during 1993,
which described a number of "white-yellow chunky
substance[s]." Hartert testified that crack is
normally packaged in the corners of plastic bags,
and the report described sixteen such bag parts
taken from Linton’s apartment. These bag corners
had originally contained the "white-yellow chunky
substance." The police inventory report never
uses the term "crack." However, Hartert testified
that, based on his experience in investigating
narcotics violations, the substance was crack.
Stahlke had analyzed the cocaine base taken from
Linton’s apartment. His initial laboratory report
prepared in 1993 lists the relevant items as
"knotted plastic baggies" containing "off-white
solid[s]." Stahlke testified at the hearing that
these solids were also "chunky." While the tests
Stahlke performed demonstrated that the substance
was cocaine base rather than powder cocaine,
these analyses did not distinguish between crack
and other forms of cocaine base. Nevertheless,
Stahlke testified that, based on the appearance
of the cocaine base and the manner in which it
was packaged, the substance found in Linton’s
apartment was crack.
The district court decided that although the
government’s evidence was not overwhelming, it
was sufficient to prove by a preponderance of the
evidence that Linton possessed crack. The court
used the base offense level for crack contained
in Sentencing Guidelines sec. 2D1.1(c) to
calculate Linton’s sentence and resentenced him
to 140 months. Linton appeals his sentence.
II. Discussion
Linton argues that the government did not
satisfy its burden of proving that he possessed
crack. The district court’s determination of the
kinds of drugs involved in an offense is reviewed
for clear error. See United States v. Mattison,
153 F.3d 406, 412 (7th Cir. 1998); United States
v. Valenzuela, 150 F.3d 664, 667 (7th Cir. 1998).
The government must prove by a preponderance of
the evidence that the type of cocaine base the
defendant possessed was crack. See United States
v. Earnest, 185 F.3d 808, 811 (7th Cir. 1999);
United States v. Bradley, 165 F.3d 594, 595 (7th
Cir. 1999).
We find no reversible error in the district
court’s determination that Linton possessed crack
or the sentence based on that finding. The
present case is similar to United States v.
Abdul, 122 F.3d 477 (7th Cir. 1997), where we
upheld a district court’s finding that a
substance was crack based on "a veteran narcotics
agent and a forensic chemist agree[ing] that
Abdul’s cocaine base was crack cocaine." Id. at
479; see also United States v. Branch, 195 F.3d
928, 934 (7th Cir. 1999). Hartert and Stahlke fit
these occupational descriptions and both
testified that they believed Linton possessed
crack, based on the appearance and packaging of
the substance. Besides such testimony, direct
evidence of the visual characteristics of the
cocaine base supports the district court’s
decision. The police report’s description of
Linton’s cocaine base as a "white-yellow chunky
substance" comports with the description of
"crack" contained in the Sentencing Guidelines.
U.S.S.G. sec. 2D1.1(c)(D) ("’Crack’ . . . usually
appear[s] in a lumpy, rocklike form."); see
Earnest, 185 F.3d at 812 (relying in part on
description of cocaine base as an "’off-white,
chunky substance’" in upholding district court’s
finding that substance was crack); see also
United States v. Griffin, 194 F.3d 808, 829 (7th
Cir. 1999); Bradley, 165 F.3d at 596. Placement
of the substance in the corners of plastic bags
matches the standard way in which crack is
prepared for sale. See Griffin, 194 F.3d at 829.
The testimony of witnesses familiar with crack,
combined with direct evidence that the substance
had the appearance of and was packaged like
crack, is sufficient to satisfy the government’s
burden of proof and permit a district court to
conclude that a defendant possessed crack.
Linton’s attempts to controvert the district
court’s determination are unsuccessful. Given the
evidence produced at the resentencing hearing,
the mere fact that no one at the plea hearing or
the original sentencing referred to the substance
as crack cannot preclude the district court’s
finding. See Earnest, 185 F.3d at 812. In
addition, Linton failed to produce any
affirmative evidence that the substance was some
other form of cocaine base besides crack. See
Bradley, 165 F.3d at 596; Abdul, 122 F.3d at 479-
80. The government need only prove that the
substance was more likely than not to have been
crack, and it produced enough evidence to carry
its burden.
III. Conclusion
Given the testimony of two experts in narcotics
and uncontested factual findings regarding the
appearance and packaging of the cocaine base that
Linton possessed, the district court did not err
in concluding that the substance was crack and
sentencing Linton accordingly. Therefore,
Linton’s sentence is Affirmed.
/1
A suppression motion was decided against Linton
before his plea, and his agreement preserved that
issue for appeal to this court. We affirmed the
district court’s rejection of Linton’s motion in
an unpublished order. United States v. Linton, 41
F.3d 1511 (7th Cir. 1994) (table).