United States v. Allie Harper ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3735
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Allie Harper, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 7, 1997
Filed: April 16, 1997
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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Allie Harper challenges the 324-month
sentence imposed by the district court1 following his guilty plea to
possessing with intent to distribute in excess of fifty grams of a mixture
or substance containing cocaine base, in violation of 21 U.S.C. §
841(a)(1). We affirm.
We reject Harper's contention on appeal that the district court erred
in calculating his base offense level absent "proof by a preponderance of
the evidence that the form of cocaine base possessed by Harper was actually
crack." Harper did not contend below that the cocaine base he possessed
was something other than
1
The HONORABLE JEAN C. HAMILTON, Chief Judge, United States
District Court for the Eastern District of Missouri.
crack cocaine. Thus, his present challenge is subject to plain error
review. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir. 1993),
cert. denied, 510 U.S. 1075 (1994). We conclude there was no plain error
here, as the record demonstrates Harper was aware that he was pleading
guilty to an offense involving crack cocaine. The unchallenged offense
conduct portion of Harper's presentence report (PSR) clearly showed that
Harper possessed crack cocaine with intent to distribute. Further, Harper
implicitly conceded to the type of cocaine involved by agreeing to the
PSR's determination of his base offense level. See United States v.
LaRoche, 83 F.3d 958, 959 (8th Cir. 1996) (per curiam) (district court
entitled to accept as true factual statements in PSR to which defendant
does not object). Finally, Harper's objection at sentencing to the
enhanced penalties for crack versus powder cocaine revealed his awareness
that his plea was to a crack-cocaine offense. Cf. United States v. Bush,
70 F.3d 557, 562 (8th Cir. 1996) (10th Cir. 1995) (sentencing for cocaine
base upheld where clear from defendant's admissions that he intended to
plead guilty to offense involving cocaine base, not cocaine powder), cert.
denied, 116 S. Ct. 795 (1996). Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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