United States v. Minton , 9 F. App'x 24 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1299
UNITED STATES,
Appellee,
v.
KYLE MINTON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
James R. Knudsen and Whittenberg & Associates on brief for
appellant.
Donald K. Stern, United States Attorney, and Heidi E.
Brieger, Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.
May 14, 2001
Per Curiam. Kyle Minton appeals from his 74-month
sentence imposed following a guilty plea to possession and
distribution of cocaine base. Minton’s sole argument on
appeal is that the district court erred in applying the
enhancement for crack cocaine under the Sentencing
Guidelines. Specifically, Minton argues that the government
proved only that the substance at issue was “cocaine base,”
but failed to prove that it was “crack,” the only form of
cocaine base to which the sentencing enhancement applies. We
remanded for further findings and, if necessary, an
evidentiary hearing regarding the type of drugs that Minton
possessed and sold.
On remand, the district court held an evidentiary
hearing on April 2, 2001, to determine, in the court’s
words, “whether the substance at issue was the crack form of
cocaine base or some other form of cocaine base.” At that
hearing, Drug Enforcement Administration (DEA) Special Agent
David O’Neill testified. Id., p. 4. After being found by
the district court to be fully qualified to testify on the
subject, Special Agent O’Neill testified that the drug
substance seized was “lumpy and rocky with an off-white
color, all characteristics which indicated to him that it
was crack cocaine.” Subsequent laboratory tests confirmed
that “the active drug ingredient is cocaine base.”
Recent opinions of this court have clarified the
“cocaine base/crack distinction in the sentencing context.”
United States v. Richardson, 225 F.3d 46, 49 (1st Cir. 2000).
Both the statute and the Guidelines
impose significantly greater penalties
for distributing (or manufacturing,
dispensing, or possessing with intent to
manufacture, distribute, or dispense) a
given quantity of “cocaine base” rather
than an equivalent quantity of “cocaine”
(i.e., cocaine hydrochloride or powder
cocaine). See 21 U.S.C. §
841(b)(1)(A)(ii), (iii); U.S.S.G. §
2D1.1(c). Neither the statute nor the
drug-quantity table in the Guidelines
that establishes the offense level uses
the word “crack.” Section 841(b) does
not define “cocaine base,” but we have
held that the term, as used in the
statute, includes all forms of cocaine
base, including but not limited to
crack. See United States v. Lopez-Gil,
965 F.2d 1124, 1134 (1st Cir. 1992)
(opinion on panel rehearing). As used
in the Guidelines, however, “cocaine
base” has, since a 1993 amendment, a
narrower meaning: “‘Cocaine base,’ for
the purposes of this guideline, means
‘crack.’ ‘Crack is the street name for
a form of cocaine base, usually prepared
by processing cocaine hydrochloride and
sodium bicarbonate, and usually
appearing in a lumpy, rocklike form.”
U.S.S.G. § 2D1.1 Node (D). For
Guidelines purposes, then, forms of
cocaine base other than crack are
treated as cocaine. See U.S.S.G. App. C,
Amend. 487 (1993).
Id.
Therefore, proof that a substance meets the
chemical definition of cocaine base does not suffice to
prove that the guideline definition of cocaine base (i.e.,
crack) applies. “Chemical analysis cannot distinguish crack
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from any other form of cocaine base because crack and all
other forms of cocaine base are identical at the molecular
level. . . . Crack can be differentiated from other cocaine
bases only by appearance and texture.” United States v.
Robinson, 144 F.3d 104, 109 (1st Cir. 1998). However, once
the government has proven by chemical analysis that a
substance is cocaine base, lay opinion testimony may suffice
to prove that it is crack. Richardson, 225 F.3d at 50.
Based upon Special Agent O’Neill’s sworn testimony,
DEA reports, and Minton’s answers to questions posed to him
by the court at his change-of-plea hearing, the district
court found that “the government has satisfied its burden of
proving, by a preponderance of the evidence, that the
substance at issue was the crack form of cocaine base.”
In our order remanding this case, we permitted the
parties to file supplemental briefs within twenty days of
the filing of the district court’s supplemental report.
That document was received by this court on April 6, 2001.
Neither party has filed a supplemental brief. In all
events, it is readily apparent that the district court’s
finding survives clear-error review. Once scientific
evidence established that the substance was cocaine base,
“competent lay testimony, remarking the substance’s
distinctive appearance and texture and identifying it as
crack, forged the final link in the evidentiary chain.”
United States v. Martinez, 144 F.3d 189, 190 (1st Cir. 1998).
The sentence is affirmed.
By the Court:
PHOEBE MORSE, Clerk
By:
Chief Deputy Clerk
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[cc: Heidi E. Brieger, Esq., Dina Chaitowitz, Esq.,
James Knudsen, Esq.]