United States v. Pitt ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4278
JAMES LAMONT PITT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-94-33)
Submitted: October 28, 1997
Decided: November 24, 1997
Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Keith L. Kimball, SYKES, CARNES, BOURDON & AHERN, P.C.,
Virginia Beach, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, Laura M. Everhart, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lamont Pitt appeals his sentence of 188 months incarceration for
distribution of cocaine base and possession with intent to distribute
cocaine base.1 Pitt, who was resentenced after his firearm conviction2
was vacated pursuant to Bailey v. United States , ___ U.S. ___, 64
U.S.L.W. 4039 (U.S. Dec. 6, 1995) (No. 94-7448, 94-7492), now
contends that he should be sentenced in accordance with the powder
cocaine sentencing guidelines rather than the more severe "crack"
cocaine guidelines. Finding Pitt's claim without merit, we affirm his
sentence.
Relying on United States v. James, 78 F.3d 851 (3d Cir. 1996),
cert. denied, ___ U.S. ___, 65 U.S.L.W. 3259 (U.S. Oct. 7, 1996)
(No. 95-9224), Pitt argues that the government failed to prove that he
possessed crack, as opposed to another form of cocaine base. While
Pitt did not contend at sentencing that the substance he possessed was
anything other than crack cocaine, he now argues that he should be
resentenced under the powder cocaine guidelines because he was con-
victed of distributing cocaine base and possession with intent to dis-
tribute cocaine base, and the government failed to prove that the
specific type of "cocaine base" at issue was indeed "crack."3
Pitt's reliance upon James is misplaced. James involved an indict-
ment that charged possession of "a detectable amount of cocaine
base" and an ambiguous plea colloquy.4 Furthermore, the issue was
hotly litigated at sentencing, and the district court eschewed any spe-
cific factual findings, holding only that "cocaine base means crack for
purposes of the guidelines."5 Faced with the ambiguities in the record
and the lack of factual findings by the district court, the Third Circuit
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1 See 21 U.S.C. § 841(a)(1) (1994).
2 See 18 U.S.C. § 924(c) (West Supp. 1997).
3 U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(D) (1995) (specifi-
cally noting that "crack" is but one form of"cocaine base").
4 See James, 78 F.3d at 855-56.
5 Id. at 856-57.
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found that the government had failed to prove that the substance at
issue was crack cocaine. The court then remanded for resentencing.6
However, in this case, unlike James, there is no ambiguity. Pitt was
convicted on indictment charging him with distribution of "Cocaine
Base, Commonly Known as ``Crack.'" Furthermore, while Pitt
objected to the quantity of drugs used to calculate his sentence in the
presentence report, he did not object to the characterization of the
drugs as crack cocaine or to a sentence under the crack guidelines. In
so doing, Pitt demonstrated his understanding that the term "cocaine
base" in the presentence report referred to "crack," and thereby
waived his present claim by not raising it at sentencing. Finally, the
guidelines specifically state that the Sentencing Commission uses the
term "cocaine base" to refer to "crack."7 Pitt's suppression hearing,
trial, presentence report, and sentencing hearing are replete with refer-
ences to cocaine base, and it is abundantly clear that all parties under-
stood the term "cocaine base" to mean "crack." In the absence of
evidence that the substance was another form of cocaine base and
absent any contemporaneous objection by Pitt, his argument must fail.
In sum, there was sufficient evidence in the record to support, by
a preponderance of the evidence, that the substance at issue was crack
cocaine. Significantly, there was no evidence to the contrary, and no
objection by Pitt to the computation of his sentence under the crack
guidelines. Furthermore, because we have not adopted the holding of
James, the district court did not commit plain error by sentencing Pitt
under the crack cocaine guidelines.8
Accordingly, we affirm Pitt's sentences. 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 the
decisional process.
AFFIRMED
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6 Id. at 858.
7 USSG § 2D1.1(c)(D).
8 See United States v. Olano, 507 U.S. 725, 734 (1993) (claim raised
for the first time on appeal cannot justify reversal unless the error is
"clear under current law").
3