In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2609
United States of America,
Plaintiff-Appellee,
v.
Reggie Booker,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 CR 93--Lynn Adelman, Judge.
Argued June 6, 2001--Decided August 14, 2001
Before Fairchild, Bauer, and Posner,
Circuit Judges.
Bauer, Circuit Judge. A jury convicted
Reggie Booker of one count of conspiring
to distribute and to possess with the
intent to distribute more than 50 grams
of cocaine base known as "crack" in
violation of 21 U.S.C. sec. 841(a)(1) and
sec. 846 and one count of knowingly and
intentionally dis-tributing and
possessing with intent to distribute
cocaine base known as "crack" in
violation of 21 U.S.C. sec. 841(a)(1) and
18 U.S.C. sec. 2. At the sentencing
hearing, the district judge found by a
preponderance of the evidence that the
drugs involved in Booker’s crimes were
crack, and applied the Sentencing
Guidelines accordingly. The judge then
sentenced Booker to two concurrent 292-
month sentences under the enhanced
sentencing provisions of 21 U.S.C. sec.
841(b)(1)(A). Booker appeals his
sentence, arguing that it does not comply
with Apprendi and contending that
thedistrict judge erred when he
determined that the drugs at the heart of
Booker’s crimes were crack. We affirm.
I. Background
Racine County law enforcement suspected
that Booker was involved in a drug
distribution conspiracy. It began
investigating and, through an informant,
arranged to make crack cocaine purchases
from Booker. Once the deal was
negotiated, Booker directed Tyrone
McKinney to deliver his drugs, and the
transactions frequently occurred in front
of the Prospect Street apartment Booker
rented. Working undercover, Detective
Keith Thrower participated in two
particularly large buys. On March 30,
1999 he bought 28 grams of cocaine base
from Booker and McKinney and on April 5,
1999 he purchased another 81.7 grams. As
part of the same investigation, another
undercover officer also purchased 4
ounces (113.4 grams) of cocaine base from
Booker’s co-conspirator, Montae Hudson.
Police arrested Booker, McKinney, and
Hudson. McKinney and Hudson cooperated
with the police. Based on information
McKinney provided, police retrieved 53.2
grams of cocaine base along with some
powder cocaine and marijuana from
Booker’s Prospect Street apartment.
McKinney also described to police how
Booker "cooked" crack by microwaving
cocaine powder and baking soda. Hudson
explained that he acted as a middle man
in Booker’s conspiracy, facilitating
deals between Booker and buyers
interested in cocaine base. Hudson
recounted that multiple times between
April 1999 and his arrest one month
later, he bought cocaine base as well as
powder cocaine to cook into crack. He
testified that he purchased a total of 22
ounces (623.7 grams) of cocaine base from
Booker.
The government indicted Booker on one
count of conspiracy to distribute cocaine
base and one count of distributing
cocaine base. A jury found Booker guilty
on both counts. The government then
requested a sentencing enhancement based
on Booker’s prior felony drug conviction.
Using 21 U.S.C. sec. 841(b)(1)(A)(iii), a
sentence enhancement for crimes involving
more than 50 grams of cocaine base, the
judge sentenced Booker to two 292-month
sentences, to run concurrently. Booker
now appeals his sentence arguing that the
district judge did not fulfill the
Apprendi requirements of treating the
drug quantity and drug type as elements
of Booker’s crimes and submitting the
factual questions to the jury, and that
he erred when he found at the sentencing
hearing, by a preponderance of the
evidence, that the drug involved in
Booker’s crimes was crack cocaine.
II. Discussion
A. Apprendi
Apprendi v. New Jersey holds that
factors which subject a defendant to an
enhanced penalty, except prior felony
convictions, are elements of the crime
that must be charged in the indictment,
submitted to the jury, and proven beyond
a reasonable doubt. See 120 S. Ct. 2348,
2362-63 (2000); United States v.
Westmoreland, 240 F.3d 618, 631-32 (7th
Cir. 2001); United States v. Nance, 236
F.3d 820, 824-25 (7th Cir. 2000). At
first glance, Booker’s sentence appears
to violate Apprendi because the judge did
not submit the issues of drug quantity
and type to the jury as elements of the
crimes, yet he sentenced Booker in excess
of the 20-year statutory maximum
prescribed by 21 U.S.C. sec.
841(b)(1)(C). Closer scrutiny, however,
shows that there is no Apprendi
violation.
21 U.S.C. sec. 841(b)(1)(C), which
establishes the 20-year statutory maximum
penalty for Booker’s crimes, creates an
exception to the 20-year ceiling:
If any person commits [a violation
punishable under sec. 841(b)(1)(C)] after
a prior conviction for a felony drug
offense has become final, such person
shall be sentenced to a term of
imprisonment of not more than 30 years .
. . .
The government presented evidence that
Booker was convicted of a felony drug
offense in 1992, and Apprendi
specifically exempts prior felonies from
its proof requirements. See 120 S. Ct. at
2362-63. Because Booker’s prior felony
conviction properly subjected him to
sentences of up to 30 years and neither
of Booker’s 292-month sentences exceeds
30 years, there is no Apprendi violation.
Even if Booker’s sentences were in
derogation of Apprendi we would affirm.
We review the district judge’s actions
for plain error because Booker raises the
Apprendi issue for the first time on
appeal. See Fed. R. Crim. P. 52(b); Nance,
236 F.3d at 825. A mistake constitutes
plain error if there is (1) an error (2)
that was clear and obvious and which (3)
affected the substantial rights of the
defendant. See Johnson v. United States,
520 U.S. 461, 466-67 (1997). If
thesefactors are met, we may, in our
discretion, reverse the district court if
the error "seriously affect[s] the
fairness, integrity, or public reputation
of judicial proceedings." Id. at
467(quotations omitted). For purposes of
this argument, we will assume that (1)
the district court committed errors
regarding both the drug quantity and
type, (2) these errors were clear, given
the law of Apprendi, and (3) these errors
prejudiced Booker’s substantial rights by
subjecting him to a sentence longer than
the statutory maximum. Booker fails to
satisfy the fourth factor of the plain
error test because the district court’s
purported mistakes were harmless. An
error is harmless when it is clear beyond
a reasonable doubt that a reasonable jury
would have found the defendant guilty
absent the error. See Neder v. United
States, 527 U.S. 1, 7 (1999); Nance, 236
F.3d at 825 (using the plain error stand
ard to evaluate an Apprendi issue.).
1. Drug Quantity
We turn first to Booker’s drug quantity
argument. In sentencing Booker, the
district judge proceeded under 21 U.S.C.
sec. 841(b)(1)(A)(iii), which is
applicable to crimes involving more than
50 grams of cocaine base. This statute
allows the judge to levy sentences of not
less than 10 years nor more than life
imprisonment. The judge’s choice of
sentencing provision was entirely
appropriate, however, he also could have
sentenced Booker to 292 months per count
using 21 U.S.C. sec. 841(b)(1)(B)(iii)
which authorizes a sentence of not more
than 40 years for crimes involving more
than 5 grams of cocaine base. See, e.g.,
United States v. Robinson, 250 F.3d 527,
530 (7th Cir. 2001); United States v.
Patterson, 241 F.3d 912, 914 (7th Cir.
2001). All of the evidence presented at
trial linked Booker with amounts of crack
cocaine in excess of 5 grams. With regard
to the conspiracy charge, Hudson
testified that he purchased a total of
623.7 grams (22 ounces) of cocaine base
from Booker. McKinney estimated that he
saw Booker cook a total of 2 kilograms of
crack cocaine. As to the possession with
intent to distribute charge, Detective
Thrower in his first controlled buy
purchased 28 grams of cocaine base, and
the amount jumped to 81.7 grams in the
second buy. Further, after Booker’s
arrest, police seized 53.2 grams of
cocaine base from the apartment Booker
rented. It is inconceivable that a
reasonable jury could have convicted
Booker without finding that his crimes
involved more than 5 grams of the cocaine
base. See, e.g., Nance, 236 F.3d at 826.
We are also confident, given that the
police actually recovered amounts in
excess of 50 grams, that a jury which
convicted Booker would have been
compelled to find that Booker’s crimes
involved in excess of 50 grams of crack
cocaine. See Robinson, 250 F.3d at 531;
United States v. Mietus, 237 F.3d 866,
875 (7th Cir. 2000). There is no plain
error with regard to drug quantity.
2. Drug Type
Next, we address Booker’s argument
regarding the drug type. 21 U.S.C.
841(b)(1)(A)(iii) prescribes enhanced
penalties for crimes involving "cocaine
base." In the context of 21 U.S.C. sec.
841 and the Sentencing Guidelines,
"cocaine base" means "crack cocaine." See
U.S.S.G. sec. 2D.1.1; United States v.
Earnest, 185 F.3d 808, 810 (7th Cir.
1999). However, scientifically, "cocaine
base" includes other forms of the drug
besides crack cocaine. Booker concedes
that his drugs fall into the scientific
category of cocaine base and are not raw
cocaine, but argues that the government
failed to prove beyond a reasonable doubt
that Booker’s cocaine base was indeed
crack. Booker contends that this failure
to prove drug type violates Apprendi
because a jury could have found that his
drugs were not crack cocaine. Booker
challenges the government’s evidence on
two grounds. He first points out that the
government’s chemical evidence identified
his drugs merely as cocaine base, not
more specifically as crack cocaine.
Second, Booker challenges the visual
identifications of the drugs as crack
because he believes that visual
examination cannot reliably distinguish
crack from other forms of cocaine.
Booker is correct that the government’s
chemical evaluations identified the drugs
generally as cocaine base and not as a
specific type of cocaine. But we are
aware of only two substances that are
classified as cocaine base: crack cocaine
and unprocessed, raw cocaine.
Significantly, the tests run on Booker’s
drugs found non-naturally occurring
chemical additives in the cocaine base,
showing that the cocaine was not raw, but
had been processed. Booker presents no
other alternative type of cocaine base
besides crack that the drugs could be. By
process of elimination, these chemical
tests show the drugs to be crack.
Even if the chemical test is
inconclusive, such tests are not the only
way to prove drug identity. We have held
that the identity of a drug may be proven
by evidence besides chemical tests, such
as visual identification by persons
familiar with the drug. See United States
v. Linton, 235 F.3d 328, 329-30 (7th Cir.
2000). The government presented
overwhelming proof that the drugs were
crack. First, De-tective Thrower, an
undercover officer, communicated to
Booker that he wanted to purchase crack
cocaine. When he received the drugs,
Thrower believed them to be crack
cocaine. The analyst from the Wisconsin
Crime Lab described the drugs as off-
white, rock-like chunks and opined that
they were crack. Further, two of Booker’s
co-conspirators who turned state’s
evidence, Hudson and McKinney, testified
that Booker was dealing in crack cocaine.
McKinney testified that he saw Booker
make crack cocaine by "cooking" cocaine
powder with water and baking soda. Also,
Booker paid McKinney with "left over
scraps" of the drugs he cooked and sold,
and McKinney, a crack addict, smoked
these drugs as crack cocaine. Hudson
purchased crack from Booker and sold it
to others as crack cocaine. We have held
that "those who smoke, buy or sell [crack
cocaine] are the real experts." United
States v. Bradley, 165 F.3d 594, 596 (7th
Cir. 1999). There is no plain error with
regard to the identity of the drug
because a reasonable jury would be
compelled to find Booker’s drugs were
crack.
B. Crack Guidelines
Booker argues that the judge erred when
he calculated Booker’s sentence using the
crack category of the Sentencing
Guidelines because the government failed
to prove by the preponderance of the
evidence that Booker’s drugs were crack
cocaine. Because we held that a
reasonable jury would be compelled to
find beyond a reasonable doubt that
Booker’s drugs were crack cocaine, we
decline to address Booker’s argument
further. See Earnest, 185 F.3d at 813
(holding that a district court properly
relied on the testimony of "witness after
witness" that the drugs at issue were
crack, despite the government expert’s
less precise conclusion that the drugs
were "cocaine base."). The judge did not
err when he calculated Booker’s base
level offense according to the crack
category of the Sentencing Guidelines.
AFFIRMED.