United States v. Carroll ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5507
DAVID CARROLL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-94-519-A)
Argued: April 11, 1997
Decided: May 5, 1997
Before WILKINSON, Chief Judge, and MICHAEL and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Daniel E. Ellenbogen, Washington, D.C., for Appellant.
James L. Trump, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Helen F. Fahey, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
David Carroll appeals his mandatory life sentence under 21 U.S.C.
§ 841 for dealing crack cocaine. Carroll contends that the district
court erroneously found the substance he sold was crack cocaine and
that he had sold more than fifty grams of it. Carroll also argues that
the court incorrectly found that he had two prior felony drug convic-
tions. We conclude that the presence of moisture in the crack cocaine
sold by Carroll does not affect the soundness of the district court's
factual findings as to the weight and identity of the drug, and that the
district court correctly determined Carroll's previous felony drug con-
victions arose out of separate incidents. Accordingly, we affirm the
judgment of the district court.
I.
In November 1993, the Arlington County Police arranged for Tim-
othy Owen, a police informant, to make several controlled purchases
of cocaine from the defendant, David Carroll. Owen purchased crack
cocaine, powder cocaine, and cocaine hydrochloride from Carroll on
eight different occasions from November 17, 1993 to October 26,
1994.
On November 9, 1994, the investigation into Carroll's drug sales
culminated when the police arranged for Owen to purchase two
ounces of cocaine base ("crack cocaine") at Carroll's drug lab. After
being wired, Owen entered Carroll's shop where Carroll prepared two
ounces of crack cocaine by mixing cocaine hydrochloride, baking
soda, and water and "cooking" it in a beaker. When Carroll was fin-
ished cooking, he put the crack cocaine into a plastic bag and sold it
to Owen for $2,500.
After Owen left the warehouse where Carroll's shop was located,
police entered to arrest Carroll and execute a search warrant. Carroll
2
fled the warehouse and was arrested outside. In Carroll's shop, the
police discovered various materials used in the production of crack
cocaine including a scale, filters, baking soda, inositol used to cut
cocaine, and a test tube with cocaine residue. They also seized 14.1
grams of crack cocaine and 14 grams of cocaine hydrochloride. Fur-
ther investigation determined that Carroll had sold Owen 61.79 grams
of crack cocaine.
A jury convicted Carroll of ten drug related counts including manu-
facturing and distributing crack cocaine. Because of Carroll's prior
felony drug convictions and the amount of crack cocaine involved,
the district court sentenced Carroll to mandatory life imprisonment
pursuant to 21 U.S.C. § 841(b). Carroll appeals his sentence.
II.
A.
Carroll first contends that the substance he sold Owen on Novem-
ber 9, 1994 was not crack cocaine. Therefore, he argues he should not
have been subject to a mandatory life sentence under 21 U.S.C.
§ 841(b). Whether the substance distributed by Carroll was crack
cocaine is a factual finding made by the district court at sentencing.
United States v. Munoz, 36 F.3d 1229, 1238 (1st Cir. 1994). We thus
review the district court's determination for clear error.
More than ample evidence confirms that the substance was indeed
crack cocaine. The government's expert witness, Lois Greer, a foren-
sic chemist, tested the substance and testified at Carroll's trial that it
was clearly crack cocaine. On cross-examination, Carroll's counsel
questioned Greer as to whether she had tested the substance to deter-
mine if it might have been another material, for example, cocaine
hydrochloride. Greer responded that she had indeed tested the sub-
stance for the presence of cocaine hydrochloride and found no evi-
dence that the substance consisted of anything but crack cocaine.
Furthermore, although Carroll had retained his own chemist to exam-
ine the material, he never called this chemist to the stand or presented
any testimony that conflicted with Greer's.
3
Carroll, relying primarily on United States v. Davis, 864 F. Supp.
1303 (N.D. Ga. 1994), argues that the substance he sold was not crack
cocaine because it was still moist when it was sold and was therefore
not "smokeable." This circuit, however, has rejected the Davis
approach. See United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995).
Nothing in the statute or sentencing guidelines defines cocaine base
by reference to smokeability. However, even if we adopted the Davis
approach, there is no evidence that the crack cocaine sold by Carroll
was not smokeable. Crack cocaine is not ignited like a cigarette.
Instead, it is melted and the vapors are inhaled. Thus, crack cocaine
need not be dry to be smoked. United States v. Tucker, 20 F.3d 242,
244 (7th Cir. 1996). Therefore, under any theory, the substance sold
by Carroll was crack cocaine.
B.
Carroll also disputes the district court's finding as to the amount of
crack cocaine sold to Owen. He argues that the district court improp-
erly included moisture in the crack cocaine that was left over as part
of the "cooking" process when it determined that Carroll had sold
61.79 grams of crack cocaine. The district court's calculation of drug
quantity is a factual finding which must be upheld unless clearly erro-
neous. United States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996).
The United States Code prescribes a mandatory life sentence for an
individual who is convicted of manufacturing or distributing 50 grams
or more of a "mixture or substance" containing crack cocaine and who
has "two or more prior convictions for a felony drug offense." 21
U.S.C. § 841(b). In Chapman v. United States, 500 U.S. 453 (1991),
the Supreme Court analyzed the meaning of the term"mixture or sub-
stance." The Court explained that in creating penalties for drug traf-
ficking, Congress had adopted a "market-oriented" approach, under
which the total quantity of the substance or mixture that was distrib-
uted, and not the amount of the pure drug contained in the substance,
is used to determine the appropriate sentence. Id. at 461. The Court
went on to recognize that this congressional decision was particularly
relevant in determining quantities of cocaine for sentencing purposes.
Congress clearly intended the dilutant, cutting agent or car-
rier medium be included in the weight of [cocaine or heroin]
4
for sentencing purposes. Inactive ingredients are combined
with pure heroin or cocaine, and the mixture is then sold to
consumers as a heavily diluted form of the drug. In some
cases, the concentration of the drug in the mixture is very
low . . . . [U]nder the language of the statute the weight of
the mixture or substance, and not the weight of the pure
drug is controlling.
Id. at 460.
Under the Chapman approach, it is clear that any moisture retained
in the crack cocaine due to the cooking process must be included in
the weight of the crack cocaine for sentencing purposes. Carroll him-
self included the weight of the moisture when he sold the crack
cocaine to Owen as two ounces, and Owen paid the market value for
two ounces of crack cocaine, $2,500. Thus, under Chapman's market
based analysis, Carroll was clearly responsible for the full weight of
the substance he sold. The Seventh Circuit, analyzing an analogous
case, reached the same result.
Cocaine base is made by mixing cocaine and baking soda
and boiling it in water, and in so doing, the water becomes
mixed with the cocaine base. . . . All three ingredients are
part of a whole, blended together, and therefore comport
with the common understanding of "mixture" recognized in
Chapman.
Tucker, 20 F.3d at 244.
We conclude that under Chapman, the district court's factual find-
ing that Carroll sold 61.79 grams of crack cocaine must be upheld.
III.
Carroll further disputes his sentence under 21 U.S.C. § 841, con-
tending that the district court improperly determined that he had "two
or more prior convictions for a felony drug offense." Carroll was con-
victed in Arlington County, Virginia for distributing cocaine on
March 17, 1986, March 20, 1986, and April 8, 1986. He was also con-
5
victed in Alexandria, Virginia for distributing cocaine on April 15,
1986. Carroll argues that these convictions were so related that they
should only count as one conviction, arguing that"but for the accident
of geography, all of these events would have been prosecuted in a sin-
gle case in one court."1
We disagree with Carroll's contention. In United States v.
Blackwood, 913 F.2d 139 (4th Cir. 1990), we held that to be consid-
ered "separate convictions," offenses "should have occurred on occa-
sions `distinct in time.'" Id. at 147 (citation omitted). Other circuits
have adopted the Blackwood approach. For example the Eleventh Cir-
cuit in United States v. Rice, 43 F.3d 601, 608 (11th Cir. 1995), held
that "convictions which occur on different occasions or are otherwise
distinct in time may be considered separate offenses under section
841(b)(1)(A)." See also United States v. Pace , 981 F.2d 1123, 1131-
32 (10th Cir. 1992); United States v. Hughes, 924 F.2d 1354, 1360-61
(6th Cir. 1991).
Carroll's previous convictions were clearly separate crimes which
occurred at different times in different locations. This is not like the
situation in Blackwood, where the criminal incidents occurred within
two hours of one another. Rather, Carroll's conviction in Alexandria
was based on an incident which occurred nearly a week after the last
incident in Arlington. The fact that the specific crimes in question
were part of an extended spree of drug sales cannot justify treating
Carroll's convictions arising from that course of illegal conduct as a
single conviction. To adopt such an approach would undermine the
purpose of the repeat offender statute.
An ongoing course of criminal conduct . . . may involve
many . . . criminal episodes, each a discrete occurrence. The
fact that all are related, part of a series, or part of a continu-
ous course of criminal dealing, does not necessarily render
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1 As an initial matter, we note that Carroll's attempts to analogize "sep-
arate convictions" in 21 U.S.C. § 841 to"related cases" under section
4A1.2 of the Sentencing Guidelines are not relevant to this case. As we
noted in United States v. Blackwood, 913 F.2d 139, 145 n.4 (4th Cir.
1990), "we are concerned here with the construction of a federal criminal
statute, not with the computation of a Guidelines criminal history."
6
them a `single' criminal episode, particularly where the epi-
sodes occur over time. To so hold would insulate the very
career criminals the statute is designed to reach-- those
continuously engaged in criminal conduct.
United States v. Liquori, 5 F.3d 435, 437-38 (9th Cir. 1993) (citation
omitted). We therefore find that the district court properly sentenced
Carroll as required by 21 U.S.C. § 841(b). 2
IV.
For the foregoing reasons we affirm the judgment of the district
court.
AFFIRMED
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2 We need not address Carroll's contention that the district court abused
its discretion by refusing to depart downward as the court was bound to
sentence Carroll to life imprisonment under 21 U.S.C. § 841(b).
7