United States v. Davis

281 F. App'x 519
Court of Appeals for the Sixth Circuit·Decided June 18, 2008·No. 06-4625·Unpublished·Cited by 1 cases

Opinion

SUTTON, Circuit Judge.

After a jury found Eddie Davis guilty of possessing (with intent to distribute) at least 50 grams of crack cocaine, the district court imposed a 240-month sentence — the statutory minimum sentence for offenders who have a prior felony-drug conviction and whose offense involves at least 50 grams of “cocaine base.” See 21 U.S.C. § 841(b)(1)(A). On appeal, Davis argues that the evidence does not show that he possessed crack cocaine. We affirm.

I.

In 2005, Cleveland police officers received a tip from an informant that Eddie Davis “was selling crack cocaine” in the area. JA 45. The informant, Vincent Whatley, agreed to participate in a controlled buy for crack cocaine. As Davis and Whatley were completing the transaction, officers arrested Davis and found co *520 caine on the ground near him, in his pockets and in his vehicle.

A federal jury found Davis guilty of one count of possession with intent to distribute 50 grams or more of “cocaine base (crack cocaine).” JA 30-31; see 21 U.S.C. § 841(a)(1), (b)(1)(A). At sentencing, the judge initially noted that the applicable guidelines range was 188-235 months. But because the offense involved 50 grams or more of “cocaine base” and because Davis had a prior felony-drug conviction, the district court raised his sentence to the statutory mandatory minimum of 240 months. See 21 U.S.C. § 841(b)(1)(A); see also U.S.S.G. § 5Gl.l(b).

II.

In challenging this sentence, Davis argues that the district court erred in applying the statutory enhancement for controlled-substance violations involving at least 50 grams of “cocaine base.” See 21 U.S.C. § 841(b)(1)(A). While he acknowledges that his drugs tested positive for cocaine base, he contends that the statutory enhancement refers to just one form of cocaine base — crack cocaine — and that the evidence does not show that this is the type of cocaine he possessed.

In general, “[a]ll crack is cocaine base but not all cocaine base is crack.” United States v. Edwards, 397 F.3d 570, 571 (7th Cir.2005). That is because there are two forms of cocaine base: “crack” cocaine, which is produced using baking soda, and “freebase” cocaine, which is produced using a flammable solvent. United States Sentencing Commission, Cocaine and Federal Sentencing Policy 13-14 (Feb. 1995), available at http://www.ussc.gov/crack/ chapl-4.pdf. The federal sentencing guidelines, however, define “cocaine base” to mean only crack. See U.S.S.G. § 2D1.1 n.D; see also United States v. Jones, 159 F.3d 969, 982 (6th Cir.1998). And Davis argues that, although the statutory enhancement does not define “cocaine base,” we should interpret it, too, as referring just to crack cocaine. See, e.g., Edwards, 397 F.3d at 571-72 (equating “cocaine base” in 21 U.S.C. § 841(b)(l)(A)(iii) with crack cocaine). While we have used language that arguably equates the two terms, see id. at 576 (citing United States v. Levy, 904 F.2d 1026, 1033 (6th Cir.1990)), we have not squarely decided this issue.

Nor is it necessary for us to decide the issue today. Davis did not raise this distinction below and accordingly plain-error review applies. See United States v. Gardiner, 463 F.3d 445, 459 (6th Cir.2006); see also United States v. Morris, 498 F.3d 634, 643-44 (7th Cir.2007). That requires Davis to show “(1) error (2) that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc) (internal citation and quotation marks omitted).

Davis has not shown plain error. Even if the statute refers only to crack cocaine, as he argues, the jury made a factual finding (upon which the district court relied at sentencing) that Davis possessed crack cocaine. Laboratory tests showed that the substances in the bags “were all cocaine” and that they tested “positive for cocaine base.” JA 102, 105. And while the tests did not specify that the “cocaine base” was crack, the trial testimony provided more than enough evidence to support that conclusion.

First, Whatley and Detective Dlugolinski testified that the purpose of the controlled buy was to purchase crack cocaine. See United States v. Wright, 16 F.3d 1429, 1439 (6th Cir.1994) (“The identity of a drug may be ascertained by circumstantial evidence____”). Whatley told officers that Davis was selling crack cocaine, and when *521 Whatley told Davis that he wanted “what [he] got last time,” JA 49, the officers understood that to mean crack cocaine. Whatley also told Davis, “My clucks love it.” JA 58. “Clucks,” Dlugolinski testified as a drug-trafficking expert, is “a derogatory word [for] a crackhead or a person addicted to crack cocaine.” JA 58; see also United States v. Fifer, 206 Fed.Appx. 502, 507-08 (6th Cir.2006) (noting that police officers may testify as experts about drug activity).

Second, narcotics officers described the drugs that they found as “crack cocaine.” See United States v. Owusu, 199 F.3d 329, 340 (6th Cir.2000) (“The government may rely on ... testimony from field agents to establish that seized cocaine is crack cocaine.”), abrogated on other grounds by Buford v. United States, 532 U.S. 59, 63-66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001); see also Morris, 498 F.3d at 644 (relying on officer testimony to hold that there was sufficient evidence that the drug in question was crack cocaine, as opposed to another form of cocaine). Three narcotics officers each testified that Davis had crack cocaine with him when they approached him. See

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United States v. Davis, 281 F. App'x 519 (6th Cir. 2008).

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