United States v. Boone ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4971
REGINALD BOONE, a/k/a Reggie,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-92-113)
Submitted: September 30, 1997
Decided: October 29, 1997
Before WILLIAMS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Patrick H. O'Donnell, KAUFMAN & CANOLES, Norfolk, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Laura M.
Everhart, Assistant United States Attorney, Norfolk, 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Unpublished opinions are not binding precedent in this circuit.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:
Appellant Reginald Boone was convicted by a jury of several drug
trafficking and related firearms offenses. On appeal, he alleges that
the evidence was insufficient to prove that the cocaine base attributed
to him was "crack" cocaine pursuant to U.S.S.G§ 2D1.1,1 as opposed
to some other form of cocaine base. Finding no reversible error, we
affirm.
Boone was part of a large drug conspiracy. After his trial, he
appealed his convictions and sentences, and this court affirmed the
convictions, but remanded the case for resentencing on the ground
that the district court improperly aggregated quantities of different
substances in order to yield an amount which invoked a mandatory
life sentence and because the court failed to make a finding concern-
ing Boone's status as a career offender under U.S.S.G. § 4B1.1. See
United States v. Harris, 39 F.3d 1262, 1271-72 (4th Cir. 1994). On
resentencing, the district court found that Boone qualified as a career
offender and sentenced him accordingly. Boone again appealed, and
this court affirmed his convictions except for one conviction under 18
U.S.C. § 924(c), which we vacated in light of Bailey,2 and remanded
for resentencing. See United States v. Boone, No. 95-5055 (4th Cir.
Aug. 16, 1996) (unpublished). During the second resentencing hear-
ing, Boone alleged for the first time that the Government failed to
present sufficient evidence to show that the cocaine base attributable
to him was crack cocaine, as opposed to some other form of cocaine
base.
As a threshold matter, we find that Boone has waived this issue
absent a showing of plain error, and we find no such error here. See
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1 U.S. Sentencing Guidelines Manual § 2D1.1 (1996).
2 Bailey v. United States, 116 S.Ct. 501 (1995).
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United States v. Olano, 507 U.S. 725, 732 (1993); Fed. R. Crim. P.
52(b). During his trial, the court spoke in terms of crack cocaine. Both
the presentence report and the court's findings of fact at sentencing
identified the substance in question as crack cocaine. Numerous wit-
nesses testified at trial that Boone dealt in crack cocaine, and the
investigating officer identified the substance as lumpy and rock-like.
Finally, the Government's chemist testified that the substance was
cocaine base, which she said is commonly referred to as crack. At no
time did Boone object to characterizing the substance as crack. We
find that the record supports the district court's finding that the sub-
stance in question was indeed crack cocaine.
We further find that Boone's reliance on United States v. James, 78
F.3d 851 (3rd Cir.), cert. denied, 117 S.Ct. 128 (1996), and United
States v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994), is misplaced
since both cases are distinguishable from this appeal. In James, the
indictment charged possession of "a detectable amount of cocaine
base" and the plea colloquy was ambiguous as to the exact nature of
the drug. 78 F.3d at 855-56. In addition, the issue was debated at sen-
tencing, and the district court held only that "cocaine base means
crack for purposes of the guidelines" without making any factual find-
ings. Id. at 856-57. Because of the ambiguous record and lack of fac-
tual findings by the district court, the Third Circuit found that the
Government failed to prove that the substance at issue was crack
cocaine and remanded for resentencing. In the present case, we find
that the record was clear and that the district court made specific fac-
tual findings concerning the nature of the drugs involved.
In Munoz-Realpe, the defendant pled guilty to importation of "co-
caine." He argued at sentencing that the drug at issue in his case, "co-
caine base in liquid form," should be treated as cocaine powder for
sentencing purposes. The Eleventh Circuit affirmed the district
court's factual finding that the substance was not crack cocaine. 21
F.3d at 376-77 (cocaine base in liquid form requires further process-
ing and can just as easily be made into powder cocaine as crack
cocaine). In the present case, the drugs in question were in the form
of a lumpy, rock-like substance, which is most commonly associated
with crack.
Finally, even if the district court erred, we find that any error was
hardly "plain." In other contexts, this court has treated "cocaine base"
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and "crack" more or less as synonymous terms. See United States v.
Fisher, 58 F.3d 96, 98-99 (4th Cir.), cert. denied, 116 S.Ct. 329(1995); United States v. Pinto, 905 F.2d 47, 49-50 (4th Cir. 1990). We
therefore affirm Boone's convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the material before the court and argument would
not aid the decisional process.
AFFIRMED
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