United States v. Claude Fuller ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2425
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa
Claude Fuller, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: April 24, 1998
Filed: May 13, 1998
___________
Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
___________
PER CURIAM.
Claude Fuller appeals from the final judgment entered in the District Court1 for
the Northern District of Iowa upon a jury verdict finding him guilty of possessing, and
aiding and abetting the possession of, crack cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced
Fuller to 120 months imprisonment and eight years supervised release. Counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Fuller has filed
1
The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa.
a pro se supplemental brief. For reversal, counsel argues that the evidence was
insufficient to prove Fuller&s guilt and that Fuller&s prior state conviction did not
constitute a felony for purposes of 21 U.S.C. § 841(b)(1)(B)&s sentencing enhancement;
Fuller argues pro se that the government failed to prove the cocaine base was crack
cocaine and that, because he was not indicted by a grand jury and did not waive this
requirement when he was prosecuted for his prior state offense, his present sentence
cannot be enhanced. See 21 U.S.C. § 851(a)(2) (to enhance sentence, person must
have either waived or been afforded prosecution by indictment “for the offense for
which such increased punishment may be imposed”). For the reasons discussed below,
we affirm the judgment of the district court.
We will reverse a conviction for insufficient evidence only when we conclude
that no reasonable juror could find guilt beyond a reasonable doubt, and we review the
evidence in the light most favorable to the government and accept all reasonable
inferences supporting the verdict. See United States v. Behr, 33 F.3d 1033, 1035 (8th
Cir. 1994). The evidence presented at trial was more than sufficient to support a guilty
verdict. The government&s evidence showed authorities seized cash from Fuller and
also seized crack cocaine, drug paraphernalia, and additional cash from a residence
linked to Fuller; Fuller admitted that the crack was his, that the seized money belonged
to him and some of it represented drug proceeds, and that he had cut and packaged the
crack found at the residence. The evidence further established that the quantity and
packaging indicated an intent to distribute, and that Fuller had sold crack cocaine to an
undercover officer a few days before the search, had given his pager number to that
officer, and possessed serialized currency from that transaction.
We also conclude the district court did not err in determining Fuller&s prior state
conviction for possessing less than 15 grams of cocaine was a prior drug felony for
purposes of 21 U.S.C. § 841(b)(1)(B). See 21 U.S.C. § 802(13) (stating as relevant
that “felony” means any state offense classified by applicable state law as felony); 720
Ill. Comp. Stat. 570/402(a)(2) and (c) (West 1993) (person who possesses less than 15
-2-
grams of cocaine is guilty of Class 4 felony). Because Fuller was prosecuted by
superseding indictment in the instant offense, we also reject his argument that §
851(a)(2) precludes the use of Fuller&s prior conviction to enhance his sentence under
§ 841(b). See United States v. Trevino-Rodriguez, 994 F.2d 533, 536 (8th Cir. 1993)
(§ 851(a)(2) refers to prosecution of current offense, not prior conviction; because
instant offenses of conviction were prosecuted by indictment, § 851(a)(2) did not
preclude use of prior state conviction to trigger statutory mandatory minimum under
§ 841(b)).
Next, we review for plain error Fuller&s pro se argument concerning the identity
of the drugs, because he failed to object below to the calculation of his base offense
level using the Guidelines for cocaine base. See United States v. Montanye, 996 F.2d
190, 192 (8th Cir. 1993) (en banc); United States v. Williams, 994 F.2d 1287, 1294
(8th Cir. 1993). We conclude the district court did not commit plain error in using the
Guidelines for cocaine base, because the government&s witnesses testified that Fuller
admitted to owning and selling crack cocaine and that Fuller had sold crack cocaine to
an undercover officer. Moreover, the laboratory reports admitted into evidence
indicated that the seized drugs were “cream chunks” determined to be cocaine base and
that the “rock-like substance[s]” sold to the undercover officer also were cocaine base.
Cf. United States v. Stewart, 122 F.3d 625, 627-28 (8th Cir. 1997) (evidence supported
finding that defendant sold crack cocaine when undercover officer testified he had
purchased crack cocaine from defendant on three occasions and identified substances
when introduced into evidence, and government entered into evidence lab reports
indicating cocaine base was “rock-like”).
We have reviewed the record for any nonfrivolous issues in accordance with
Penson v. Ohio, 488 U.S. 75, 80 (1988), and have found none.
Accordingly, we affirm the judgment of the district court. Fuller&s motion for
appointment of appellate counsel is denied.
-3-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-