United States v. Nolton ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4254
EARL LEE NOLTON, JR., a/k/a Eric
Gaiter, a/k/a Eric Ridley,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-96-120-DKC)
Submitted: September 16, 1997
Decided: October 6, 1997
Before NIEMEYER, LUTTIG, and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William B. Moffitt, ASBILL, JUNKIN & MOFFITT, CHTD., Wash-
ington, D.C., for Appellant. Lynne A. Battaglia, United States Attor-
ney, Odessa P. Jackson, Assistant United States Attorney, Greenbelt,
Maryland, 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Unpublished opinions are not binding precedent in this circuit.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:
Earl Lee Nolton, Jr., appeals from his conviction upon a guilty plea
to one count of distributing crack cocaine, 21 U.S.C. § 841(a)(1)
(1994), for which he was sentenced to 262 months imprisonment.
Nolton claims, first, that the government failed to prove that the sub-
stance described in the indictment as cocaine base was "crack"
cocaine and, second, that guideline § 2D1.1 1 is void for vagueness
with respect to its definition of cocaine base. Finding both claims
without merit, we affirm.
Nolton was indicted on nine counts of drug trafficking offenses
after a series of controlled purchases by a cooperating witness. He
pled guilty, pursuant to a plea agreement, to Count III (distributing
cocaine base), reserving his "right to argue, at sentencing, that . . . the
cocaine base purchased and/or seized in this case does not fall within
the definition of ``crack' as the term is defined in U.S.S.G. § 2D1.1,
Note D." At Nolton's sentencing hearing, the government presented
two witnesses, Federal Bureau of Investigation (FBI) Agent Kevin
Ashby and Drug Enforcement Administration (DEA) chemist Lois
Geer.
Ashby testified that, as lead investigator, he monitored each of the
six controlled purchases from Norton, heat-sealing each substance
retrieved from the cooperating witness for submission to the DEA
laboratory. Ashby stated that, based on the appearance of the sub-
stances ("off-white color rock chunk-like substance") and discussions
with the cooperating witness as to what he expected to purchase, in
his opinion, the substances purchased from Nolton were "crack
cocaine."
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1 U.S. Sentencing Guidelines Manual (1995).
2
Geer testified that the substances at issue sent to the lab proved to
be "cocaine base" and that cocaine base is"commonly referred to as
``crack cocaine.'"2 Geer also stated that in her thirteen years as a DEA
chemist, she had never analyzed any other form of cocaine base other
than what is called "crack cocaine." Nolton presented no expert testi-
mony to rebut the government's experts.3
Nolton claims, first, that the Government failed to prove that the
substance described in the indictment as "cocaine base" was "crack
cocaine" within the definition of USSG § 2D1.1. We review the dis-
trict court's finding on this issue for clear error. United States v.
McDonald, 61 F.3d 248, 255 (4th Cir. 1995).
Section 2D1.1, as amended in 1993, 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.
USSG § 2D1.1, Note D to Drug Quantity Table. We find that, under
the definition provided above, the government met its burden of prov-
ing that the substance identified in the indictment was in fact "crack
cocaine" under § 2D1.1. Therefore, the district court did not clearly
err in this determination.
Nolton also asserts that the guidelines definition of cocaine base is
unconstitutionally vague. We have considered and rejected this claim.
See United States v. Fisher, 58 F.3d 96 (4th Cir. 1995), cert. denied,
___ U.S. ___, 64 U.S.L.W. 3270 (U.S. Oct. 10, 1995) (No. 95-5923);
see also United States v. Canales, 91 F.3d 363 (2d Cir. 1996).
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2 Two samples sent to the lab which were retrieved from Nolton's
apartment upon his arrest tested as cocaine hydrochloride although they
were initially identified by the Agent as "crack cocaine."
3 However, the parties stipulated to the testimony of Nolton's expert
witness who would have testified that the psychological and pharmaco-
logical effects of cocaine hydrochloride and cocaine base are identical.
3
Accordingly, Norton's sentence is affirmed. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid in
the decisional process.
AFFIRMED
4