United States v. Thompson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4150
MICHAEL ERNEST THOMPSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4298
WALTER ROBERT HOUCHINS,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge;
James A. Beaty, Jr., District Judge.
(CR-95-181-6)
Submitted: December 19, 1996
Decided: January 6, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Michael A. Grace, Lisa S. Costner, TISDALE, GRACE, MENEFEE
& COSTNER, P.A., Winston-Salem, North Carolina; David B. Freed-
man, WHITE & CRUMPLER, Winston-Salem, North Carolina, for
Appellants. Walter C. Holton, Jr., United States Attorney, Robert M.
Hamilton, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Michael Ernest Thompson and Walter Robert Houchins both pled
guilty to conspiracy to possess more than 50 grams of cocaine base
("crack") with intent to distribute, 21 U.S.C.§ 846 (1994) (Count
One), and attempt to possess 1500 grams of cocaine hydrochloride
with intent to distribute, 21 U.S.C. § 846 (Count Two). In connection
with Count One, Thompson reserved the right to argue at sentencing
that the substance involved was cocaine hydrochloride (powder
cocaine). Thompson was sentenced to 135 months imprisonment and
Houchins received a sentence of 170 months. Both appeal their sen-
tences, contending that they should have been sentenced under the
lower penalties for powder cocaine. We affirm.
On July 3, 1995, a federal prisoner contacted Drug Enforcement
Administration agent Charles Graham in Greensboro, North Carolina,
and told him that Houchins was trying to find out who his source had
been. Graham told the prisoner to give Houchins his number and
within an hour Houchins called Graham. At Thompson's sentencing
hearing, Graham testified that Houchins said he wanted to buy a kilo-
gram of powder cocaine; they agreed on a price of $22,000. Later the
same day, Houchins called again and asked whether he could get a
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kilogram of crack instead, to expedite matters, because his customers
wanted crack. Graham said he could have the crack in two days.
Houchins then explained that he wanted the end-product to be crack
with a yellow color (indicating more potency), that he really preferred
to buy powder cocaine because he could test its purity more easily,
and that he wanted to get at least 36 ounces of crack from a kilogram
of powder cocaine. Graham and Houchins agreed to meet on July 5.
Houchins said his partner in New Jersey, who handled the money,
would have to come down so they could "do their thing."
On July 5, Graham met Houchins and Thompson at a restaurant
where they decided to pay for one kilogram of powder cocaine and
have Graham front them another half-kilogram. Thompson expressed
the same concerns as Houchins about whether the kilogram would
yield 36 ounces when it was cooked and the color of the final product.
Two hours later, Graham met Houchins and Thompson at a hotel
where they showed him a bag of cash and he displayed the cocaine
and asked whether they wanted to test it. Thompson said he did. They
all went into a hotel room, where both defendants were arrested.
Authorities then searched the apartment Houchins shared with co-
defendant Douglas McCain.* In Houchins' bedroom, they found 13
grams of crack, cocaine residue and a razor blade in a container,
boxes of ammunition and plastic bags, and receipts for money orders
sent to Thompson. Another 17 grams of crack and two firearms were
in McCain's room. Thompson's traveling bag was also in the apart-
ment; it contained a ledger in which Houchins' street name appeared
several times.
Thompson and Houchins both maintain that the district court
clearly erred in converting the 1.5 kilograms of powder cocaine to
crack for sentencing purposes because the only evidence that Appel-
lants intended to cook the powder cocaine into crack was Houchins'
statements. They contend that his statements were ambiguous puffery
and were elicited by Agent Graham. The record does not bear out
these assertions. Houchins told the agent that he wanted to buy pow-
der cocaine which would convert into 36 ounces or more of good
quality crack. Thompson made similar statements. This was sufficient
for the court to find by a preponderance of the evidence that their
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*McCain met Thompson at the airport that morning.
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intent was to convert the powder cocaine to crack for distribution.
Consequently, a sentence under the crack guidelines was appropriate.
United States v. McMurray, 34 F.3d 1405, 1414 (8th Cir. 1994), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3627 (U.S. Feb. 21, 1995) (No.
94-7605); United States v. Paz, 927 F.2d 176, 180 (4th Cir. 1991).
The government was not required to prove that Appellants would
have converted the cocaine into crack rather than some other form of
cocaine base. This court has held that, for sentencing purposes, the
term "cocaine base" includes crack. United States v. Pinto, 905 F.2d
47, 49 (4th Cir. 1990).
Thompson contends on appeal that the court failed to find that
Houchins' statements to the agent were within the scope of his agree-
ment with Houchins. His argument is without basis. Thompson
argued at sentencing that there was no evidence, beyond conjecture,
that he knew Houchins intended to convert the cocaine to crack. How-
ever, the district court found that the government had proved that
Thompson and Houchins had conspired to possess crack for distribu-
tion and that Thompson had come from New Jersey to North Carolina
for the purpose of converting the powder cocaine to crack. The
court's finding resolved the issue and was not clearly erroneous.
The convictions and sentences are therefore affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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