United States v. Steven Wilborn ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3891
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S TEVEN W ILBORN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 951-1—Matthew F. Kennelly, Judge.
A RGUED JUNE 3, 2009—D ECIDED A UGUST 10, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
R OVNER, Circuit Judge. Steven Wilborn pled guilty
to three counts of possession of a firearm by a felon, in
violation of 18 U.S.C. §922(g)(1), and four counts of dis-
tributing a controlled substance, in violation of 21 U.S.C.
§ 841(a)(1). After a sentencing hearing, the district court
determined that the substance Wilborn distributed was
crack cocaine, as opposed to some other form of cocaine
base. Wilborn disputes that finding, and we affirm.
2 No. 08-3891
I.
On four occasions in 2006, Wilborn sold cocaine to a
confidential informant.1 Each time, law enforcement
agents equipped the confidential informant with audio
and video recording devices and followed the informant
to Wilborn’s home. On August 30, Wilborn sold 26.2 grams
of cocaine to the informant. On August 31, he sold
26.6 grams, and referred to the substance as “glass,” a term
relating to the quality or purity of the drug being sold.
He told the informant he and his cousin had cooked it
themselves. On September 13, Wilborn sold to the infor-
mant 26.8 grams of cocaine and a .380 caliber pistol. On
November 1, Wilborn sold 69.8 grams of cocaine to the
informant, referring again to the substance as “glass.” After
the November 1 transaction, law enforcement agents
arrested Wilborn, searched his home, and found addi-
tional cocaine, packaged in eight small Ziploc-style plastic
bags.
Wilborn does not dispute that the substance at issue
is some form of cocaine base, claiming only that it is not
crack cocaine. Crack dealers are subject to substantially
harsher sentences than sellers of powder cocaine. See 21
U.S.C. § 841(b)(1)(A)(iii); U.S.S.G. § 2D1.1(c); United States
v. Stephenson, 557 F.3d 449, 452 (7th Cir. 2009) (noting that,
although recent congressional and judicial actions have
lowered some of the sentences for dealing crack cocaine,
crack sentences still are significantly higher than those for
1
Wilborn raises no issues on appeal with respect to the
firearms-related convictions.
No. 08-3891 3
other forms of cocaine); United States v. Edwards, 397
F.3d 570, 571 (7th Cir. 2005) (noting the ten-year statutory
minimum sentence triggered by distributing five or
more kilograms of powder cocaine, or fifty or more
grams of crack cocaine, and citing guidelines provisions
that apply harsher terms to crack than to powder co-
caine). The sole issue on appeal is whether the district
court clearly erred in determining that the controlled
substance at issue was crack cocaine.
At the sentencing hearing, the government presented
two expert witnesses to testify to the nature of the sub-
stances seized in the controlled buys and from the sub-
sequent search of Wilborn’s home. Government Exhibits 9,
10, 11, and 21 corresponded to the substances sold to
the confidential informant on August 30, August 31,
September 13, and November 1, respectively. Exhibit 17
consisted of the substance found in the search of
Wilborn’s home following his November 1 arrest.
Fredericka Laux, a senior forensic chemist for the Drug
Enforcement Administration, testified that she per-
formed several tests on the substances and determined
that each contained cocaine base in varying degrees of
purity. Exhibits 9, 10, 11 and 21 ranged in purity from
36% to 45%, meaning that between 36% and 45% of the
total weight of the sample was cocaine base, and
the remainder of each sample was comprised of other
materials. Exhibit 17, the one found in the search of
4 No. 08-3891
Wilborn’s home, was 74.2% pure cocaine base.2 The
materials tested also contained sodium bicarbonate, a
material commonly used in manufacturing crack cocaine,
and cutting agents, among other things. Laux explained
that she preserved a small sample of each exhibit prior
to testing because the testing process requires her to
grind the material in order to homogenize it. The grinding
process changes the appearance of the substance. All of
the substances tested appeared rock-like prior to testing,
in varying shades of white and brown. During Laux’s
testimony, the district court judge viewed the samples in
both their original forms and in the forms in which
they appeared after grinding. Some of the samples con-
tained moisture that was not initially visible but became
apparent when the sample turned mushy after grinding.
Christopher Labno, a Special Agent of the Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”),
testified that, based on his extensive experience as an
ATF agent, the substances seized from Wilborn were
crack cocaine, as opposed to some other form of cocaine
base. According to Agent Labno, “[c]rack cocaine is
a street slang term for the smokable form of cocaine
base.” R. 86, at 55. He described the typical color of crack
as a range of shades from off-white to a dark yellowish-
brown, and the consistency as rock-like. He also testified
2
Laux testified that there was no typical level of purity that she
found in cocaine samples she had tested in her career. Rather
purity varied widely, and she had personally seen samples
as low as 3% pure and as high as 91% pure cocaine base.
No. 08-3891 5
that, in his extensive experience with narcotics, he had
seen many variations in both color and consistency,
including crack that was still mushy or moist because
it had not fully dried following the cooking process. Agent
Labno explained that it is possible to smoke crack cocaine
that is still moist. According to Labno, all of the cocaine
recovered from Wilborn was consistent with the appear-
ance of crack cocaine, it was packaged as crack would be
packaged, and it was priced at market rates for crack
cocaine. Moreover, Agent Labno had taken a statement
from Wilborn after his arrest, during which Wilborn
himself identified the substances as crack cocaine.
After hearing this testimony, personally examining
the samples, and hearing the argument of counsel, the
court ruled that all of the substances seized from
Wilborn were crack cocaine. The court correctly noted
the factors to consider in evaluating cocaine base, in-
cluding color, texture, appearance, pricing, packaging,
and the labels that buyers and sellers apply to it. The
court found that the original samples were hard, rocky
substances that ranged in color from white to off-white.
After the grinding process, some of the samples had the
appearance of wet sand or chocolate chip cookie dough.
R. 86, at 79. The court found that all of the cocaine base
was priced as crack cocaine, that Wilborn thought he
was selling crack, and that his buyers believed they were
buying crack. Moreover, unrebutted testimony demon-
strated that even moist crack cocaine could still be
smoked. R. 86, at 78-79. The court concluded that the
government had proved by a preponderance of the evi-
dence that the substances at issue were crack cocaine. The
6 No. 08-3891
court sentenced Wilborn to the low end of the guidelines
range, 121 months’ imprisonment on each of the drug
counts, with the sentences to run concurrently. 3 Wilborn
appeals.
II.
On appeal, Wilborn concedes that the cocaine base
found in his home, which was labeled Exhibit 17 during
the sentencing hearing, was adequately shown to
be crack cocaine because it had the color, appearance,
composition, consistency and purity of crack cocaine that
Congress and the Sentencing Commission intended to
target. He contends that the evidence was insufficient to
prove by a preponderance that the other substances at
issue were crack cocaine. The district court’s determina-
tion that the cocaine base exhibits were crack is a
factual finding that we review for clear error. Stephenson,
557 F.3d at 452. Wilborn’s main complaint is that the
cocaine base he sold was not rock-like, and varied in
color beyond what was typically expected for crack.
Rather, the samples were described as being the con-
sistency of mashed potatoes, wet sand, and chocolate
chip cookie dough at various parts of the hearing. The
color ranged from the typical off-white to a dark yellowish
brown. Moreover, Wilborn complains, there was no
evidence that the confidential informant believed he
was buying crack cocaine. Nor was there any testimony
3
Wilborn also received 120 month sentences on each of the
firearms counts, also to run concurrently to each other and to
the sentences for the drug counts.
No. 08-3891 7
that the cocaine was packaged in the manner crack is
usually packed for sale, in the corners of plastic bags or
in small plastic bags. Finally, he argues that the purity of
all of the samples, except for Exhibit 17, was too low for
the substance to be considered crack. All in all, he con-
tends the evidence was insufficient to find by a prepon-
derance that the substance was crack.
Rather than applying a rigid definition to the meaning
of crack, which is admittedly not a scientific term, we
have held that a sentencing judge must determine
whether a substance is crack as those who buy and sell in
the market would understand that term. Stephenson, 557
F.3d at 453. See also Edwards, 397 F.3d at 574 (noting that
cocaine and cocaine base are chemically identical, and
defining crack as “the street name for a form of cocaine
base, usually prepared by processing cocaine hydrochlo-
ride and sodium bicarbonate, and usually appearing in
a lumpy, rock-like form.”); U.S.S.G. § 2D1.1, Note D. We
consider a variety of factors in determining whether a
particular sample of cocaine base is crack including the
color, consistency, packaging, pricing, the manner in
which the parties to the transaction refer to the sub-
stance, and whether the parties to the transaction
recognize the substance as crack. Stephenson, 557 F.3d at
453 (identifying price, appearance, packaging, manner
of transaction, and the understanding of the parties to
the transaction as relevant factors in determining
whether a particular substance is crack); United States v.
Kelly, 519 F.3d 355, 363-64 (7th Cir. 2008) (listing form,
color, packaging, and the words used by the buyer and
seller as relevant to the calculus of whether a substance
8 No. 08-3891
is crack); United States v. Morris, 498 F.3d 634, 644 (7th
Cir. 2007) (identifying color, consistency and packaging
as relevant factors, and noting that wet crack is not un-
usual).
The first problem with Wilborn’s argument is that it
disingenuously describes the consistency of the sub-
stances at issue as being similar to mashed potatoes, wet
sand, and chocolate chip cookie dough. Although some
of the samples had these unusual consistencies after
they had been ground up for testing, the district court
personally viewed samples that were preserved
before grinding and found that each sample had the
characteristic rock-like, off-white appearance that the
experts expected crack to have. Moreover, Laux testified
that the post-grinding consistency was caused by
pockets of water trapped inside the rocks of crack, proba-
bly due to insufficient drying time. R. 86, at 45-47. Agent
Labno explained that a certain level of wetness could
be expected because dealers often wait to cook powder
cocaine into crack until they have received an order, so
that they will not be caught possessing crack. Agent Labno
also remarked that water added weight to the crack,
which made the substance more profitable to dealers,
who typically sell crack by weight. R. 86, at 59.
Laux testified that the darker color of the substances
after grinding was due to the presence of other ingredients
in the mixture. She also testified that the purity of the
samples was not determinative because she had encoun-
tered cocaine base with wide-ranging levels of purity.
Agent Labno testified that the crack was packaged as
No. 08-3891 9
he would expect crack to be packaged. The larger quanti-
ties were packaged as he expected wholesale quantities
to be packaged, and the smaller quantities were pack-
aged in the manner he expected user amounts to be
packaged. Perhaps most damning for Wilborn was his
own post-arrest statement to Agent Labno. In that state-
ment, Wilborn himself repeatedly identified the sub-
stance that he sold to the confidential informant as
crack cocaine. In short, the district court did not clearly
err in accepting the testimony of two experts that
Exhibits 9, 10, 11 and 21 consisted of cocaine base that
was priced like crack, packaged like crack, and had the
color and consistency of crack. United States v. Branch,
195 F.3d 928, 934 (7th Cir. 1999) (in determining whether
a substance is crack cocaine, the district court alone
decides the issue based on the evidence received, con-
sidering the credibility, knowledge and experience of the
witnesses). Nor did the court clearly err in concluding
that, given those findings and given Wilborn’s own
admissions, Exhibits 9, 10, 11 and 21 were crack cocaine
as we have defined that term. To paraphrase James
Whitcomb Riley, if cocaine base looks like crack, is
priced like crack, is packaged like crack, and is sold as
crack, it is probably crack.
A FFIRMED.
8-10-09