The opinion
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
June 22, 2001
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA D. ROVNER, Circuit Judge
Nos. 99-2962, 99-3588 & 99-3781
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District
of Indiana, Hammond Division.
v.
No. 97 CR 198
LARRY E. STOTT, JR., ROBERT A.
GAUGHAN, a/k/a BOB, and LONNIE James T. Moody,
M. FORD, a/k/a LONNIE, Judge.
Defendants-Appellants.
ORDER
Upon consideration of Mr. Ford’s petition for rehearing, the Government’s
response, and Mr. Ford’s reply thereto, this court grants the petition for rehearing and
substitutes the following language for section B.2.(c) of the original opinion found at
page 41 of the slip:
Finally, Mr. Ford submits, also by motion filed after oral argument, that Apprendi
renders his sentence invalid for two reasons. First, Mr. Ford focuses on the amount of
Nos. 99-2962, 99-3588 & 99-3781 Page 2
drugs allegedly involved. He argues that the statutory maximum sentence for possession
of cocaine, without reference to quantity, is twenty years. Because the jury did not find
him guilty of possessing a specific amount of cocaine, Apprendi dictates that his sentence
be limited to twenty years. In his second argument, Mr. Ford turns to the type of drugs
for which he should be held accountable. According to Mr. Ford, the Government did
not come forward with evidence that his dealings included cocaine base, for purposes of
21 U.S.C. § 841(b) and the Sentencing Guidelines, and therefore his sentence cannot be
justified as an enhanced penalty for possession of “crack” as opposed to merely “powder”
cocaine. We address each of Mr. Ford’s argument below.
As an initial matter, however, Mr. Ford failed to raise any Apprendi-type
argument in the district court. Consequently, we review Mr. Ford’s Apprendi challenge
only for plain error. See United States v. Nance, 236 F.3d 820, 824 (7th Cir. 2000),
petition for cert. filed, (U.S. Apr. 24, 2001) (No. 00-9633). In order to establish plain
error, Mr. Ford must show that (1) there was error; (2) the error was plain; (3) the error
affected his substantial rights; and (4) the error seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. See id. (quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997)).
The government concedes that Mr. Ford has established at least some elements
of the plain error test. It, however, maintains that Mr. Ford cannot show that the error
affected the fairness, integrity, or public reputation of the judicial proceedings because
there was overwhelming evidence establishing the amount of crack cocaine involved in
Nos. 99-2962, 99-3588 & 99-3781 Page 3
Count II. We agree.
When applying the “fairness” prong of the plain error standard to Apprendi cases,
“we ask whether it is clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.” United States v. Robinson, 250 F.3d 527,
530 (7th Cir. 2001) (internal quotation marks and citations omitted). In the
circumstances presented here, we believe that it is clear beyond a reasonable doubt that
a properly instructed jury would have found Mr. Ford guilty of possessing 50 or more
grams of cocaine base thereby qualifying Mr. Ford for a life sentence pursuant to 21
U.S.C. 841(b)(1)(A)(iii).
With respect to Count II of the indictment, the jury was instructed that “on or
about December 8, 1997, . . . Lonnie M. Ford did knowingly and intentionally possess
with intent to distribute in excess of fifty grams of cocaine base.” R.295, Inst. 12. As the
government explains, “Count 2 was based on the 403 grams of crack cocaine Bonner was
transporting when he was stopped by law enforcement officers” on December 8, 1997.
Rehearing Ans. at 6. Mr. Ford did not contest the quantity (403 grams) of the drugs
seized. Consequently, because Count II was based on a single transaction of an
undisputed amount of cocaine base, the jury could not have convicted Mr. Ford on Count
II without finding that 403 grams of some type of cocaine was involved.
With respect to the drug type, Mr. Ford maintains that the Government cannot
establish beyond a reasonable doubt that the cocaine seized from Mr. Bonner was
“cocaine base” for purposes of the Sentencing Guidelines and 21 U.S.C. § 841.
Nos. 99-2962, 99-3588 & 99-3781 Page 4
Consequently, even if the amount is undisputed, he still must be resentenced based on
the type of drug involved.
“Cocaine base,” as defined by the Sentencing Guidelines, means “‘crack.’ ‘Crack’
is the street name for a form of cocaine base, usually prepared by processing cocaine
hydrochloride and sodium bicarbonate, and usually appears in a lumpy, rocklike form.”
USSG § 2D1.1(c) note (D).1 Mr. Ford points to the chemist’s report in the present case,
that fails to identify the presence of sodium bicarbonate, as evidence that the cocaine
involved was not “crack.” We believe that Mr. Ford takes an overly narrow view of the
information provided by the chemist. The report was part of Stipulation Number 1; it
stated:
The Government and the Defendant stipulate as follows. One if DEA
forensic chemist Lionel Tucker were called to testify, his testimony will be
consistent with the results listed in lab report attached hereto, which
reflect the lab analysis of Government’s exhibit Number 1, Number 2, and
Number 3. In addition, Mr. Tucker would testify that exhibit Number 1,
cocaine base, is commonly known as crack cocaine.
Tr. 249 (emphasis added).2 Viewed in its entirety, therefore, the stipulation concerning
the chemist’s testimony clearly characterizes the cocaine base in Count II as “crack.”
In addition, the presence or absence of sodium bicarbonate is not dispositive of
1
Congress employed the same meaning of cocaine base, that is “crack,” when enacting the
enhanced penalty provisions for cocaine base found in 21 U.S.C. § 841. See United States v. Booker,
70 F.3d 488, 494 (7th Cir. 1995).
2
Furthermore, there does not appear, on the face of the report, a place to list sodium
bicarbonate even if it were present. The format of the report requires the chemist to identify the
“Active Drug Ingredient.” Tr. 249 Stip. 1. Because sodium bicarbonate is not part of the “active
drug ingredient” of crack cocaine, its absence is altogether reasonable. Id.
Nos. 99-2962, 99-3588 & 99-3781 Page 5
whether a substance is crack under the Guidelines. As noted by the Tenth Circuit in
United States v. Brooks, 161 F.3d 1240 (10th Cir. 1998), the qualifier “usually” in the
phrase “usually prepared . . . with sodium bicarbonate” is “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.” Id. at 1248.
Consequently, it is not essential that a lab report indicate the presence of sodium
bicarbonate before the enhanced penalties are applied.
According to the testimony at trial, we do not see how the substance taken from
Bonner could be anything other than “crack” cocaine as used in the statute.3 The
evidence established that the substance contained cocaine base, that Bonner had
“cooked” the cocaine into crack, Tr. 311; that the chemist characterized the substance
as “crack,” Tr. 249 Stip. 1; and that the substance was characterized by all who saw it
as a “rock-like,” Tr. 242, 249 Stip. 1. Consequently, we believe it is clear beyond a
reasonable doubt that a rational jury would find that the substance involved in Count
II was crack as defined in the statute and the Guidelines. Any Apprendi error, therefore,
did not seriously affect the fairness, integrity or public reputation of the judicial
proceedings, and the plain error standard has not been met. See U.S. v. Mietus, 237
3
Mr. Ford also places some emphasis on letters written by Bonner to Mr. Ford while Mr.
Ford was awaiting sentencing. According to Bonner, these letters were meant to help Mr. Ford
escape the enhanced penalty provisions by characterizing the drugs taken from Bonner as something
other than crack. As Bonner explained on the stand, the letters, written under very dubious
circumstances, were based on an incorrect understanding of the definition of crack. On the stand,
Bonner stated, both at trial and at sentencing, that he “cooked” the cocaine into crack.
Nos. 99-2962, 99-3588 & 99-3781 Page 6
F.3d 866, 875 (7th Cir. 2001) (finding no plain error when jury would have found at least
50 kilograms of marijuana had it been properly instructed and therefor finding no plain
error).
In all other respects, the petition for rehearing is denied. The judgment of the
district court is affirmed.
AFFIRMED