F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 12 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-1367
v.
DEWAYNE BROOKS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 96-CR-303-AJ)
Darold W. Killmer, Denver, Colorado, for Appellant.
Stacey Ross, Assistant U. S. Attorney, Denver, Colorado, (Henry L. Solano,
United States Attorney, with her on the brief), for Appellee.
Before, TACHA, HENRY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
Dewayne Brooks was charged in a one-count indictment with distribution
of “cocaine base” in violation of 21 U.S.C. § 841. After a two-day trial, the jury
found Brooks guilty as charged. The district court denied Brooks’ oral motion for
judgment of acquittal and sentenced Brooks to a 165-month term of
imprisonment. On appeal, Brooks asserts the district court committed four trial
errors and two sentencing errors. As to the trial, Brooks asserts the district court:
(1) abused its discretion in admitting into evidence a tape recorded conversation
referring to uncharged drug transactions; (2) abused its discretion in failing to
declare a mistrial after a government witness testified about an uncharged drug
sale subsequent to the charged transaction; (3) erred in failing to excuse a juror
for cause who exhibited implied bias based on occupation; and (4) erred in failing
to question a juror about potential misconduct after the juror was observed talking
to a uniformed court security officer during a lunch break. As to sentencing,
Brooks asserts the district court committed plain error in: (1) failing to hold
unconstitutional the Sentencing Guideline distinction between crack and powder
cocaine; and (2) calculating his base offense level premised on distribution of
“crack” without any evidence the cocaine base contained sodium bicarbonate.
This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.
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II. BACKGROUND
The facts, stated briefly and in the light most favorable to the United
States, are as follows. This case arises out of a drug transaction which took place
on September 15, 1995. On that date, cooperating witness Maurice Johnson,
acting at the direction of FBI Agent Tommy Ross and Denver Police Detective
Norman Pressley, made two telephone calls to an individual identified as “Paper”
for the purpose of setting up a drug purchase. Paper agreed to sell Johnson four
ounces of cocaine for $950 an ounce. Paper and Johnson agreed to meet at a
Safeway parking lot to complete the transaction. Following this telephone
conversation, Johnson and Pressley drove to the Safeway parking lot to complete
the transaction. Johnson made a second call to Paper from the Safeway parking
lot; Paper instructed Johnson to drive across the street to an apartment complex.
Once Johnson and Pressley reached the apartment complex, Brooks approached
the car and entered the back seat. Brooks handed Pressley two baggies containing
a total of approximately four ounces of crack cocaine and accepted $3800 in
return.
Brooks was eventually arrested in 1997 and indicted for distribution of
cocaine base based on the September 15 th transaction. At trial, the United States
relied primarily on the testimony of Ross and Pressley to prove the allegations
against Brooks. FBI Agent Ross testified that he observed the drug transaction
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from a distance of approximately thirty yards. Ross testified that he had
monitored the first telephone call between Johnson and Paper and had observed
Johnson and Pressley drive to a Safeway grocery at Paper’s direction. Ross also
monitored the second call between Johnson and Paper in the Safeway parking lot
and observed Johnson and Pressley as they drove across the street to the
apartment complex identified by Paper. Ross observed a short, African American
male with a white t-shirt, who Ross identified as Brooks, approach Johnson’s car.
Ross also testified he monitored the conversation in Johnson’s car and, based on
the circumstances and the monitored conversation, he believed a drug transaction
had occurred.
The second witness for the United States was Pressley, the undercover
officer who accompanied Johnson during the drug transaction. Pressley
corroborated Ross’s account of the events and fleshed out the details of the drug
transaction. Pressley admitted on cross-examination, however, that Brooks was in
Johnson’s car less than two minutes.
Seeking to bolster Pressley’s identification of Brooks, the United States
asked Pressley to discuss other occasions on which he had an opportunity to speak
with Brooks. 1 Pressley explained that he contacted Brooks on October 11, 1995,
1
Brooks’ primary contention through opening statement, cross-examination
of Ross and Pressley, and closing argument was that the United States had
indicted the wrong man and that Ross’ and Pressley’s identifications of Brooks
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by using a pager number given to him by Ross. 2 Using the same pager number,
Pressley paged Brooks again on October 12, 1995. During that conversation,
Brooks and Pressley agreed to meet at a grocery store parking lot. Because
Brooks was not present when Pressley arrived at the parking lot, Pressley paged
Brooks again. Brooks returned the call and arranged to meet Pressley in the
grocery store parking lot. Pressley testified that the man who met him in the
parking lot on October 12 was Brooks, the same person he had met during the
September 15 th drug transaction.
The district court allowed the United States to play for the jury tape
recordings of the September 6 th and 15 th monitored phone conversations between
Johnson and Brooks. Pressley testified that he had listened to the tape-recorded
conversations and recognized the voices as Brooks and Johnson.
Brooks did not testify or call any witnesses on his behalf. He argued
vigorously in closing that the United States had not proven beyond a reasonable
doubt that Brooks was the man known as “Paper” involved in the September 15 th
drug transaction. Brooks stressed that neither Pressley nor Ross had a good
were unreliable.
2
Ross obtained the pager number from a monitored telephone conversation
between Johnson and Paper on September 6, 1995. At trial, Pressley was shown a
transcript of the September 6 th phone conversation; he confirmed the number in
the transcript was the same pager number he used to contact Brooks on October
11 th.
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opportunity to see the man they identified as Brooks. The jury returned a verdict
of guilt.
III. ANALYSIS
A. Trial Error
1. Admission of Tape-Recorded Conversation Regarding Uncharged Drug
Transactions
At trial, the United States sought to admit a tape recording of the
September 6 th telephone conversation between Brooks and Johnson, the
confidential informant. Brooks sought to exclude the recording on the grounds
that the recorded conversation was irrelevant and was inadmissible under Federal
Rule of Evidence 404(b) because it was more prejudicial than probative. The
district court concluded the conversation was admissible as prefatory action in
anticipation of the September 15 th transaction 3 and because it was probative of the
issue of “Paper’s” true identity. This court concludes the district court did not
abuse its discretion in admitting the recorded conversation at trial because it was
properly admissible under Rule 404(b) to demonstrate identity. See United States
On appeal, the parties vigorously contest whether the September 6 th
3
recorded conversation constituted prefatory communications that were part and
parcel of the September 15 th transaction or, instead, simply unrelated bad acts
evidence. In light of this court’s conclusion, set out more fully below, that the
September 6 th recorded conversation was properly admitted under Rule 404(b), we
need not address this issue.
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v. Wacker, 72 F.3d 1453, 1468 (10 th Cir. 1995) (setting forth abuse of discretion
standard to district court’s decision to admit evidence under Rule 404(b)).
Federal Rule of Evidence 404(b) provides that evidence of other crimes,
acts or wrongs is generally not admissible. Such evidence is, however, admissible
to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b). The Supreme Court has
determined Rule 404(b) evidence is admissible if it satisfies the following four-
part test: (1) the evidence is offered for a proper purpose; (2) the evidence is
relevant; (3) the probative value of the evidence is not substantially outweighed
by its potential for unfair prejudice; and (4) upon request, the district court
provides an appropriate limiting instruction. See Huddleston v. United States, 485
U.S. 681, 692 (1988).
Under the plain text of Rule 404(b) and this court’s precedent, other acts
evidence is properly admitted at trial to establish identity. See Fed. R. Evid.
404(b); United States v. Oberle, 136 F.3d 1414, 1419 (10 th Cir. 1998). The first
Huddleston factor is thus satisfied. The recorded conversation also satisfies the
second Huddleston criteria because it was highly relevant to the issue of
“Paper’s” identity. See id. (past acts evidence relevant at trial were identity of
perpetrator is focus of trial). During the September 6 th conversation recorded by
Ross, Brooks gave his pager number to Johnson. Pressley testified that he used
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that same pager number to contact Brooks on several occasions in October,
including one occasion that lead to a face-to-face meeting. Pressley further
testified that he had listened to the September 6 th recorded conversation and
recognized, based on his subsequent telephone conversations and face-to-face
meetings, the voice as that of Brooks. This evidence was highly probative in light
of Brooks’ only defense at trial being that of mistaken identity. Brooks argued
that Ross and Pressley did not have sufficient opportunity to observe the man who
sold cocaine base to Johnson and Pressley on September 15 th. He further argued
that the officers had confused him with his brother Cederic Brooks, a convicted
drug dealer who allegedly looks very similar to Brooks. Thus, although the
September 6 th recorded conversation was prejudicial in that it related to prior bad
acts, the district court did not abuse its discretion in concluding the highly
probative nature of the evidence outweighed its prejudicial effect. Finally,
although the jury was not given a limiting instruction regarding the September 6 th
recorded conversation, Brooks did not request such an instruction. Because each
of the four Huddleston factors were met here, this court concludes the district
court did not abuse its discretion in admitting the evidence under Rule 404(b).
2. Admission of Testimony Regarding an Uncharged Drug Transaction
Prior to trial, in response to Brooks’ request for disclosure of Rule 404(b)
evidence, the United States indicated that it intended to elicit testimony from
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Pressley regarding his meeting with Brooks on October 12 th. The United States
represented that it intended to elicit testimony regarding the October 12 th meeting
for the limited purpose of demonstrating Pressley’s ability to identify both the
voice and person of Brooks. The United States reiterated these representations on
the date of the trial. Based on the United States’ representations about the limited
nature of the testimony it would elicit regarding the October 12 th meeting, Brooks
did not initially object to Pressley’s testimony regarding the meeting.
When Detective Pressley took the stand at trial, the United States began
laying a foundation for Pressley’s testimony regarding the October 12 th meeting
through the use of carefully tailored leading questions. In response to a question
regarding what he did on October 12 th at a particular time, Pressley responded,
“On that date I had conversation with the defendant and expressed that I wanted
to purchase --.” At that point, the prosecutor quickly cut off Pressley, stating,
“Excuse me. Without going into the substance of the conversation, did you have
a conversation with him.” Brooks then moved for a mistrial because the jury had
learned the purpose of the October 12 th meeting. The district court denied the
motion for a mistrial, but gave the jury a lengthy cautionary instruction. 4
4
The district court instructed the jury as follows:
I want to give you a cautionary instruction because we have now had
testimony by Detective Pressley about a meeting – he’s about to
testify concerning a meeting and various conversations that he’d had
with the defendant arranging the meeting that are alleged to be with
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Brooks’ argument on appeal is two-fold. He first argues the district court
abused its discretion in allowing the United States to elicit testimony regarding
telephone conversations between Brooks and Pressley planning the October 12 th
meeting and in eliciting testimony regarding the location of the meeting. Second,
Brooks argues the district court abused its discretion when it failed to declare a
mistrial after Pressley’s stray remark regarding the purpose of the October 12 th
meeting.
In arguing the district court abused its discretion in allowing the United
States to explore some of the circumstances leading up to the October 12 th
meeting, Brooks concedes the testimony, with the exception of Pressley’s stray
remark, satisfies the first, second, and fourth requirements set out in Huddleston. 5
the defendant arranging the meeting other than those with which the
defendant is charged, in other words, the charge involved a date
certain, that is, September 15, 1995.
I want to remind you that the defendant is charged only with
. . . the allegation of distribution of cocaine base on September 15,
1995. Obviously, this other testimony relates to a meeting and the
arrangements for a meeting with Detective Pressley other than that
charged. This evidence is received for the limited purpose only of
demonstrating the identification of the defendant and explaining how
Detective Pressley was able to identify the defendant. Such evidence
may not be considered by you as proof that the defendant is
automatically guilty of the specific offense with which he is charged,
but is relevant as to any question of his identification of the
defendant and is received for that limited purpose only.
5
Brooks concedes the United States articulated the precise evidentiary basis
for the testimony, the testimony was relevant, and the district court gave an
appropriate cautionary instruction.
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He argues, however, that the United States failed to comply with its pre-trial
promises of limited admissibility when it elicited foundational testimony about
conversations leading up to, and the location of, the October 12 th meeting. In so
doing, according to Brooks, the United States elicited testimony more prejudicial
than probative when it left the clear impression that Brooks had participated in
additional drug transactions.
This court has closely reviewed Pressley’s testimony regarding telephone
conversations leading up to the October 12 th meeting, as well as the testimony
regarding the location of that meeting. That review leads this court to conclude
that the United States was appropriately circumspect in its questioning of Pressley
and that it succeeded in wringing the prejudicial “other crimes” aspects out of
Pressley’s testimony regarding the October 12 th meeting. We also agree with the
district court that much of the challenged testimony was necessary “to lay the
foundation for where and when things occurred.” Accordingly, the district court
did not abuse its discretion in admitting the background information regarding the
October 12 th meeting. See Wacker, 72 F.3d at 1468 (holding district court’s
admission of evidence pursuant to Fed. R. Evid. 404(b) reviewed for abuse of
discretion).
Brooks also argues the district court abused its discretion when it failed to
grant a mistrial following Pressley’s stray remark regarding the purpose of the
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October 12 th meeting. “A ruling on a motion for mistrial is within the sound
discretion of the district court and will not be disturbed absent a clear abuse of
that discretion.” Id. at 1466. As noted above, the United States acted
appropriately in minimizing the prejudicial “other crimes” aspects of Pressley’s
testimony and quickly cut off Pressley when he began to explain the purpose of
the October 12 th meeting. When Brooks objected and sought a mistrial, the
district court immediately gave the jury a detailed cautionary instruction. See
United States v. Castillo, 140 F.3d 874, 884 (10 th Cir. 1998) (“A central
assumption of our jurisprudence is that juries follow the instructions they
receive.”). In light of the district court’s superior perspective in assessing the
impact of Pressley’s stray remark and its strong cautionary instruction, this court
concludes the district court did not commit a “clear abuse of discretion” when it
denied Brooks’ motion for mistrial. See Wacker, 72 F.3d at 1466.
3. Failure to Excuse Juror For Cause
Brooks asserts the district court erred in denying his challenge for cause of
potential juror Tuan Nguyen. During voir dire, Nguyen stated that his father had
been a colonel in the Vietnamese Army and that his duties included commanding
drug control operations in South Vietnam. Nguyen further testified that he had
“strong feelings about drug[s], using of drug[s].” Despite this fact, Nguyen
attested that he did not have any connections to or special knowledge about drugs;
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did not have any strong feelings which would interfere with his ability to be a fair
juror; and that he would follow the court’s instructions on Brooks’ constitutional
rights, including the presumption of innocence and the government burden of
proving guilt beyond a reasonable doubt.
Based on the past occupation of Nguyen’s father, Brooks contends the
district court was obligated, as a matter of law, to dismiss Nguyen for cause based
on implied bias. See Gonzales v. Thomas, 99 F.3d 978, 987 (10 th Cir. 1996)
(holding a potential juror may be found impliedly biased based on similarities
between that juror’s experiences and the facts giving rise to the trial, even if the
juror has no personal connection to the parties or circumstances of the trial), cert.
denied, 117 S. Ct. 1342 (1997). While we seriously doubt the merits of Brooks’
argument regarding implied bias, this court need not resolve the issue. Even if
the denial of the challenge for cause was error, it was harmless because Nguyen
was removed by a peremptory challenge. See Staley v. Bridgestone/ Firestone,
Inc., 106 F.3d 1504, 1513-14 (10 th Cir. 1997) (holding that where district court
erroneously denied a challenge for cause but plaintiff used peremptory challenge
to remove challenged juror, and made no allegation that jury as seated was biased,
error was harmless); Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122-23 (10 th
Cir. 1995) (same). Based on Staley and Getter, even assuming the district court
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erred in refusing to dismiss Nguyen for cause, such error is harmless because
Brooks has not alleged that any of the jurors actually seated were biased.
In an effort to distinguish his case from Staley and Getter, Brooks argues
that he can demonstrate prejudice flowing from the loss of the peremptory
challenge. Stated in stark but accurate terms, Brooks’ argument is that he was
prejudiced because he had to waste a peremptory which he could have instead
used to racially construct the venire, with the ultimate goal of seating an African-
American on the jury. 6 The problem with Brooks’ argument is two-fold. First,
although Brooks does “have the right to be tried by a jury whose members are
selected by nondiscriminatory criteria,” he has no right to a “‘petit jury composed
in whole or in part of persons of [his] own race.’” Powers v. Ohio, 499 U.S. 400,
Brooks argues as follows:
6
Although this Court has held that loss of a peremptory challenge is
not per se reversible error . . . in this instance the harm went beyond
merely being compelled to use a peremptory challenge on Mr.
Nguyen. The inability of Mr. Brooks to use his peremptory challenge
on someone other than Juror Nguyen may have affected the racial
composition of the jury.
The jury that convicted Mr. Brooks contained no African-
Americans. However, according to trial counsel and the defendant,
there were at least two African-Americans in the venire who were
never questioned because a jury was empaneled prior to those juror’s
[sic] being called. . . . In a district such as the district of Colorado,
which has a very low population of African-Americans, such a denial
has a great effect on an African-American defendant. Accordingly,
the district court’s failure to grant a challenge for cause was not
harmless error.
Appellant’s Opening Brief at 20-21.
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404 (1991) (quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1880)).
Second, this court has specifically held that a district court’s allegedly erroneous
denial of a challenge for cause must be reviewed for harmless error without
regard to “its effect on [a litigant’s] peremptory challenges.” Getter v. Wal-Mart
Stores, Inc., 66 F.3d 1119, 1123 (10 th Cir. 1995). Accordingly, the fact that
Brooks could have used the peremptory he “wasted” on Nguyen on other members
of the venire is of no moment as long as Brooks received all of the peremptory
challenges allowed by statute and the jury seated was not biased. See id.; Staley,
106 F.3d at 1514.
4. Failure to Hold Hearing Regarding Potential Juror Misconduct
Brooks asserts the district court erred in failing to conduct a hearing about
potential misconduct on the part of juror Carol Kimberly. On the first day of
trial, before jury selection had been completed, defense counsel observed
Kimberly smoking a cigarette outside during lunch break and talking with two
uniformed security officers. Kimberly was observed standing by the security
officers for at least ten minutes. Immediately after the lunch break, Brooks
brought the incident to the district court’s attention. Brooks asked the district
court to inquire of Kimberly whether she had discussed the case with the security
officers. After conducting a brief hearing on the issue with counsel, the district
court ruled as follows: “People do go outside to smoke. You know, the more I
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think about it, I think it would be better just not to do anything about this. I don’t
think its grounds for cause.”
Relying on the Supreme Court decision in Remmer v. United States, 347
U.S. 227 (1954), Brooks argues that the district court committed reversible error
when it failed to question Kimberly about her contacts with the security officers
during the lunch break. In Remmer, the trial court learned that one of the jurors
had received a communication advising him that he could profit by bringing in a
verdict favorable to the defendant. See id. at 228. Without informing the
defendant, the trial court ordered the FBI to investigate the incident See id.
Based on the results of that investigation, the trial court concluded that the
defendant had not been prejudiced by the comment. See id. When the defendant
learned of the incident some time later, he brought a motion for a new trial with a
request for a hearing on the incident. See id. at 228-29. The district court refused
to hold a hearing and denied the motion for a new trial. See id. The Supreme
Court reversed, holding the trial court erred in failing to conduct a hearing, with
the participation of the defendant, to determine the effect of the comment on the
jury. See id. at 229-30. In reaching this conclusion, the court held as follows: “In
a criminal case, any private communication, contact, or tampering directly or
indirectly, with a juror during a trial about a matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial . . . .” Id. at 229.
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Remmer’s presumption of prejudice does not apply under the circumstances
of this case. Brooks’ assertions to the contrary notwithstanding, the mere fact of
a juror conversing with a third-party does not raise the Remmer presumption.
Instead, the presumption arises only when there has been a communication or
contact “about the matter pending before the jury.” Id.; see also United States v.
Frost, 125 F.3d 346, 377 (6 th Cir. 1997) (holding that “an allegation of an
unauthorized communication with a juror requires a Remmer hearing only when
the alleged contact presents a likelihood of affecting the verdict”), cert. denied,
67 U.S.L.W. 3203 (Oct. 5, 1998). To hold otherwise would require a Remmer
hearing based on each of the multiple ordinary incidental contacts between non-
sequestered jurors and virtually any other person during the course of a trial.
The record does not contain any evidence that Kimberly had any discussion
with the security officers “about the matter pending before the jury.” Remmer,
347 U.S. at 229. Nor does the record contain any evidence that the officers were
in any way connected to the Brooks case. Instead, Kimberly was simply observed
smoking during the lunch break in front of the courthouse and conversing with the
officers. Furthermore, as noted by the United States, immediately prior to the
lunch break, the district court specifically instructed the jurors not to “discuss this
case among yourselves or with anyone else.” See Castillo, 140 F.3d at 884 (“A
central assumption of our jurisprudence is that juries follow the instructions they
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receive.”). Under these circumstances, the Remmer presumption did not arise and
the district court did not err in refusing to hold a hearing regarding the matter.
See Frost, 125 F.3d at 377 (holding Remmer presumption did not arise and
Remmer hearing not required where juror had contact with employees of the Clerk
of the Court during jury deliberations, because defendant “presented no basis
upon which to believe [the juror] . . . had experienced an external contact or
communication regarding matters pending before the jury during her absence from
the deliberations”).
B. Sentencing Error
1. Distinction Between Crack and Powder Cocaine
Brooks notes that for purposes of calculating a defendant’s base offense
level, the Sentencing Guidelines equate one gram of crack to 100 grams of
powder cocaine. See U.S.S.G. § 2D1.1(c) (Drug Quantity Tables). Brooks argues
that the distinction between powder and crack cocaine violates his Fifth
Amendment rights to due process and equal protection, as well as his Eighth
Amendment right to be free from cruel and unusual punishment. As Brooks
recognizes, however, these arguments are foreclosed by Tenth Circuit precedent.
See, e.g., United States v. Robertson, 45 F.3d 1423, 1444-46 (10 th Cir. 1995);
United States v. Angulo-Lopez, 7 F.3d 1506, 1508-09 (10 th Cir. 1993); United
States v. Easter, 981 F.2d 1549, 1556, 1558-59 (10 th Cir. 1992). This panel is
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bound by the cases set out above absent en banc reconsideration or a superseding
contrary decision by the Supreme Court. See In re Smith, 10 F.3d 723, 724 (10 th
Cir. 1993) (per curiam).
2. Calculation of Base Offense Level Based On Distribution of Crack
In a pro se supplemental brief, Brooks argues that his base offense level
was improperly calculated based on distribution of crack cocaine rather than
powder cocaine. The United States has addressed the issue on the merits in its
answer brief. Although we ultimately conclude the claim is without merit,
Brooks’ contentions are not frivolous. Accordingly, this court grants Brooks’
motion to file a supplemental brief and addresses his pro se claim on the merits.
Nevertheless, because Brooks did not raise this issue before the district court, this
court’s review of the issue will be solely for plain error. See United States v.
Toro-Pelaez, 107 F.3d 819, 827 (10 th Cir.), cert. denied, 118 S. Ct. 129 (1997).
During trial, the United States presented the testimony of chemist Mary
Kimmett. Kimmett testified that the substance obtained in the controlled buy
from Brooks was a “chunk material” and that a series of tests revealed that the
chunk material contained cocaine base. Kimmett further testified that cocaine
base is commonly known as crack cocaine and that crack is typically made by
cooking powder cocaine with baking soda in water. In addition, Brooks’ counsel
conceded during his closing argument that the United States had proven beyond a
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reasonable doubt that the substance in question was crack, calling the issue a “no-
brainer.” 7
Despite this evidence, Brooks asserts that calculating his base offense level
on the basis of distribution of crack cocaine was plain error because there was no
evidence before the district court that the cocaine base in question contained
sodium bicarbonate/baking soda. In support of this contention, Brooks cites
Amendment 487 to the Sentencing Guidelines, which amended the notes to the
drug quantity tables set out in § 2D1.1(c). Amendment 487 provides as follows:
“‘Cocaine base,’ for purposes of this guideline, means ‘crack.’ ‘Crack’ is the
street name for a form of cocaine base, usually prepared by processing cocaine
hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike
form.” U.S.S.G. app. C, Amend. 487; U.S.S.G. § 2D1.1(c), Note (D). Based on
the language of Amendment 487, Brooks asserts that Kimmett’s testimony at trial
that the substance in question was a form of cocaine base commonly referred to as
crack is insufficient to support the district court’s decision to calculate his base
offense level based on distribution of crack rather than powder cocaine. Instead,
This trial testimony readily distinguishes this case from the facts in United
7
States v. James, 78 F.3d 851 (3 d Cir.), cert. denied, 117 S. Ct. 128 (1996). In
James, the court concluded that it was error to apply the enhanced sentencing
provisions for crack when the only evidence before the trial court was a single
“casual reference” to crack by the government during the plea colloquy. Id. at
856-58. Kimmett’s testimony provided far more than the “casual reference”
found insufficient by the Third Circuit in James.
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according to Brooks, the United States was obligated to prove that the “crack” in
question contained sodium bicarbonate before the enhanced sentencing for crack
cocaine would apply.
Two recent unpublished dispositions of this court rejected the exact
arguments advanced by Brooks. See United States v. Marks, No. 96-3351, 1997
WL 622387, at *1-*2 (10 th Cir. Oct. 9, 1997) (unpublished disposition), cert.
denied, 118 S. Ct. 1095 (1998); United States v. Holloway, No. 97-1008, 1997
WL 527621, at *1-*2 (10 th Cir. Aug. 27, 1997) (unpublished disposition). The
Holloway court noted as follows:
[Defendant] argues that the district court incorrectly applied
the enhanced penalties for crack-related crimes because sodium
bicarbonate was not present in the substance found in his possession.
Note (D) to the Drug Quantity Table of the guidelines provides that:
“Cocaine base,” for the purposes of this guideline,
means “crack.” “Crack” is the street name for a form of
cocaine base, usually prepared by processing cocaine
hydrochloride and sodium bicarbonate, and usually
appearing in a lumpy, rocklike form.”
U.S.S.G. § 2D1.1(c), Note (D). [Defendant] reads this definition to
require that any substance identified as “cocaine base” must be
shown to contain sodium bicarbonate before it may be treated as
“crack” for sentencing purposes.
Notes or commentary to the sentencing guidelines are
considered binding authority unless either violative of the
Constitution or a federal statute, or clearly inconsistent with the
guideline commentary [it] purports to explain. Therefore, we must
construe the Guidelines’ use of the term “cocaine base” in
accordance with the definition set out in Note D. Because
[Defendant’s] interpretation would require us to ignore the word
“usually” in that definition, we reject it.
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We interpret the qualifier “usually” in the phrase “usually
prepared . . . with sodium bicarbonate” as an acknowledgment that
other methods of crack preparation exist and that not all forms of
“cocaine base” need contain sodium bicarbonate to qualify as crack
for sentencing purposes. Indeed, it appears that the method which
uses sodium bicarbonate is the least sophisticated and yields the
lowest purity. Although the laboratory report does not indicate the
presence of sodium bicarbonate in the cocaine base tested, the
district court was correct to apply the enhanced penalties for crack-
related crimes to [Defendant’s] case.
Holloway, 1997 WL 527621, at *1-*2 (citations omitted); see also Marks, 1997
WL 622387, at *2 (“The government need not prove the presence of [sodium
bicarbonate] before § 2D1.1(c) applies. The [Sentencing] Commission’s
reference to sodium bicarbonate is merely an example.”).
Although Marks and Holloway are not binding on this panel, 10 th Cir. R.
36.3, we find them persuasive and adopt their analysis. Because this court rejects
Brooks’ claim that only cocaine base containing sodium bicarbonate is crack for
purposes of Amendment 487 and § 2D1.1(c), and because the evidence at trial
demonstrated by a preponderance of the evidence that the material in question
was “street-form” crack rather than unprocessed cocoa paste, the district court did
not commit any error, let alone plain error, in calculating Brooks’ base offense
level premised on distribution of crack.
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IV. CONCLUSION
For all of the reasons set out above, the judgment of conviction and
sentence in this case are hereby AFFIRMED.
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