United States v. William Lillard ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-1832
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri
William Lillard, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 6, 1997
Filed: May 20, 1997
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Before McMILLIAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
William Lillard appeals his conviction and 200-month sentence imposed
by the United States District Court1 for the Eastern District of Missouri,
after a jury found him guilty of drug and weapons offenses. Counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and was
granted leave to withdraw. Lillard has filed a supplemental pro se brief.
For the reasons discussed below, we affirm.
In a two-count indictment, the government charged Lillard with
possessing with intent to distribute "50.0 grams or more of a mixture or
substance containing cocaine base (crack)," in violation
1
The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and with carrying a firearm
during and in relation to a drug-trafficking offense, in violation of 18
U.S.C. § 924(c)(1). After the jury returned a guilty verdict on both
charges, the district court imposed sentences of 140 months imprisonment
on the drug count and a consecutive 60 months imprisonment on the weapons
count, and five years of supervised release.
On appeal, Lillard argues in his pro se brief that the government
failed to prove the substance for which he was sentenced was "crack" and
not simply cocaine base. He also argued his counsel was ineffective in
failing to properly investigate whether his possession of a gun constituted
a § 924(c) violation and whether the pants he was wearing could have
supported the weight of the weapon he allegedly carried.
Lillard did not challenge in the district court--at trial or at
sentencing--that the government failed to prove the cocaine base he
possessed was "crack" cocaine; thus, we may review only for plain error.
See United States v. Robinson, No. 96-1731, 1997 WL 154903 at *2 (8th Cir.
Apr. 4, 1997). Where the issue is whether the district court properly
calculated the sentence based on "crack" cocaine rather than another form
of cocaine base (for the purpose of applying the increased sentence for
crack under U.S. Sentencing Guidelines Manual § 2D1.1(c)), the government
bears the burden of proving at sentencing the type of drugs by a
preponderance of the evidence. See United States v. Jones, No. 96-2656,
1997 WL 182267, at *2 (8th Cir. Apr. 16, 1997); United States v. Jackson,
64 F.3d 1213, 1219 (8th Cir. 1995) (stiffer penalties apply to crack form
of cocaine base under U.S. Sentencing Guidelines Manual § 2D1.1(c)), cert.
denied, 116 S. Ct. 966 (1996).
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We conclude there is no plain error because the government presented
evidence that the drugs were crack cocaine. Two officers, trained in
identifying drugs, testified that the drugs found were in a hard, rock-like
form typical of crack cocaine; an expert criminalist who had tested the
substance testified that the drugs were cocaine base and that cocaine base
is "also called crack." There was no contradictory evidence suggesting
that the cocaine base was not in "crack" form. Cf. United States v.
Wilson, 103 F.3d 1402, 1407 (8th Cir. 1997) (chemist provided
uncontradicted testimony that substance was cocaine base; irrelevant that
chemist did not specifically say substance was "cocaine base which is the
same as crack"). Thus, to the extent Lillard challenges either the
sufficiency of the evidence to support the jury's verdict or the
application of the enhanced Guidelines for "crack cocaine," we conclude
there was no plain error.
With respect to Lillard's ineffective-assistance-of-counsel claims,
they are more appropriately resolved in a 28 U.S.C. § 2255 motion. See
United States v. Logan, 49 F.3d 352, 361 (8th Cir. 1995).
Upon review of the record, including the trial transcript, we find
no other nonfrivolous issue for appeal. See Penson v. Ohio, 488 U.S. 75,
80 (1988). Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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