Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2432
UNITED STATES OF AMERICA,
Appellee,
v.
RAHEEM JONES,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Torruella, Lynch, and Howard, Circuit Judges.
Stephen J. Weymouth, on brief for defendant, appellant.
Paul G. Casey, Assistant United States Attorney, and Michael
J. Sullivan, United States Attorney, on brief for appellee.
September 19, 2006
Per Curiam. Raheem Jones, who pled guilty to five counts
of distributing cocaine base, in violation of 21 U.S.C. §
841(a)(1), challenges his within-guideline sentence on several
grounds. His primary set of objections focuses on the district
court's finding that the substance involved was "crack" cocaine as
opposed to some other form of cocaine base. In addition, he argues
that the resulting 108-month sentence was unreasonable because the
sentencing court relied too heavily on the advisory guidelines and
failed to apply the factors set forth in 18 U.S.C. § 3553(a),
particularly the "parsimony" principle, to his individual
circumstances. After careful review of the record, we conclude for
the reasons detailed below that the district court's factual
findings are amply supported by the record, that the court
adequately explained its reasons for imposing the sentence, and
that the resulting sentence is not unreasonably high under the
circumstances of this case viewed through the lens of the statutory
factors.
Jones's main argument is that the district court erred in
finding that the substance involved was crack cocaine as opposed to
some other form of cocaine base. This distinction matters because,
under the guidelines, a higher base offense level applies to crack
than to other forms of cocaine, including other forms of cocaine
base. See USSG § 2D1.1(c), n. D; United States v. Brown, 450 F.3d
76, 80 (1st Cir. 2006). Specifically, in this case, the crack
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finding resulted in a guideline sentencing range of 108 to 135
months rather than the range of 18 to 24 months that would apply if
the substance were some other form of cocaine base.
"When the nature of an illicit substance is material at
sentencing, the government has the burden to prove the substance's
identity by a preponderance of the evidence." United States v.
Dwayne Anderson,1 452 F.3d 66, 83-84 (1st Cir. 2006). That burden
remains unchanged after United States v. Booker, 543 U.S. 220
(2005)." Paul Anderson, 452 F.3d at 92 n.3. Jones's argument for
a burden of proof beyond a reasonable doubt is therefore "a non-
starter." Id. "'Whether a particular substance is crack or
cocaine for purposes of the sentencing guidelines is a question of
fact to be determined by the [sentencing] court,'" Dwayne Anderson,
452 F.3d at 83 (quoting United States v. Robinson, 144 F.3d 104,
109 (1st Cir. 1998)), whose fact-finding must be accepted unless it
is clearly erroneous, id.; see also United States v. Robinson, 433
F.3d 31, 38 (1st Cir. 2005) (concluding that standard of appellate
review of district court fact-finding is unchanged by Booker).
Under those standards, the district court's finding that
the substance at issue here was crack readily survives appellate
review. The court based its finding on the affidavits (and
attached laboratory reports and transcripts of grand-jury testimony
1
We include the defendant's given name to distinguish this
case from United States v. Paul Anderson, 452 F.3d 87 (1st Cir.
2006), cited below, which appears in the same volume of F.3d.
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and of a tape-recording of one of the transactions) of three highly
experienced law enforcement officials, including a forensic chemist
and special agent of the Drug Enforcement Administration and a
local police officer who was a member of a joint federal/local drug
task force. Based on that uncontradicted evidence, the court
concluded that the substance involved in all five transactions was,
in fact, cocaine, based on its off-white and rocklike appearance,
the terminology used by the parties to the transactions, the price,
and the possible presence of sodium bicarbonate in at least two of
the samples. We have repeatedly found that quantum and quality of
evidence to be sufficient, particularly in the absence of any
evidence to the contrary. See, e.g., Dwayne Anderson, 452 F.3d at
84-85; Brown, 450 F.3d at 80-81; Robinson, 144 F.3d at 109.
The fact that no evidence of sodium bicarbonate was found
in three of the samples is inconsequential. As explained by the
forensic chemist, "evidence of sodium bicarbonate is often not
found in crack cocaine because it dissipates through the
manufacturing process." Nor are we bothered by the absence of any
evidence as to the price and physical appearance of other forms of
cocaine base. As we previously recognized, "crack is . . .
uniquely identified by its 'rock-like' texture and yellowish or
off-white color." Dwayne Anderson, 452 F.3d at 80-81 (emphasis
added). Where, as here, adequate proof is presented that a
substance is crack cocaine, we have never required the government
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to rule out other forms of cocaine base. Accordingly, we discern
no clear error in the district court's determination that the
substance at issue in this case was crack.
Based on that determination, the district court correctly
calculated Jones's guideline sentencing range to be 108 to 135
months and--after expressly considering each of the mitigating
factors proffered by Jones--adopted the government's recommendation
to sentence him at the low end of that range rather than depart
downward under the guidelines or impose a non-guidelines sentence
under Booker. Specifically, the court found no evidence that
Jones's diminished mental capacity (mild mental retardation and
polysubstance disorder) contributed substantially to his commission
of the instant offenses and found his criminal history category to
adequately reflect the seriousness of his criminal record,
particularly given the temporal proximity of the instant offense to
his most recent prior offense and incarceration. The court also
commented that drug offenses are not victimless crimes, noting that
Jones's own mother died of a drug overdose, leaving him parentless
in his infancy. The only factor that gave the court pause was
Jones's poor upbringing, which the court characterized as "about as
bad as one could possibly imagine." However, after "wrest[ling]"
with that issue but finding "very little to be positive about on a
going forward basis," the court decided "to follow the guidance of
the Sentencing Guidelines and accept [the government's]
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recommendation to sentence on the low end [of the guidelines
range]." The court addressed Jones's need for rehabilitation,
resulting, in part, from his abusive and neglectful upbringing, by
recommending that he be placed in a facility with an educational
program "that can help him obtain the education and training that
he did not receive as a child." The court advised the defendant to
continue his education while in prison "so that when [he] come[s]
out, . . . [he] will be in a happier position then [he was] when
[he] went in."
Jones faults the district court for relying too heavily
on the guidelines, but the role played by the guidelines was not
impermissible here. See United States v. Jiménez-Beltre, 440 F.3d
514, 518 (1st Cir. 2006) (en banc). Having considered each of the
mitigating factors Jones brought to the court's attention and
having explained its reasons for the chosen sentence, the court was
not further required to explain why a lighter sentence would not be
"sufficient" under the prefatory language of 18 U.S.C. § 3553(a).
United States v. Navedo-Concepción, 450 F.3d 54, 58-59 (1st Cir.
2006).
Accordingly, the sentence is affirmed. See 1st Cir. R.
27(c).
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