United States v. Tammie T. Francis

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2799
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Tammie T. Francis, also known *
as Coco, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 28, 1997
Filed: May 2, 1997
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
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PER CURIAM.
Tammie T. Francis appeals her conviction for possessing cocaine base
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the
resulting mandatory life sentence imposed by the district court1 under 21
U.S.C. § 841(b)(1)(A). We affirm.
Evidence at trial established that Francis possessed a "fanny pack"
containing, among other things, a "beige rock substance." The parties
stipulated that a forensic chemist's analysis showed
1
The Honorable Dean Whipple, United States District Judge for
the Western District of Missouri.
the substance was 51.74 grams of cocaine base. The government's witnesses
testified that "cocaine base" is a term for "crack," and described how
cocaine base is made from cocaine hydrochloride, explaining that the
process results in a "solid piece known as cocaine base or crack cocaine."
Francis unsuccessfully moved for acquittal, both at the close of the
government's evidence and at the close of all of the evidence, and the jury
found Francis guilty. Because Francis had two prior felony drug
convictions, she was sentenced to a mandatory term of life imprisonment
under the enhanced penalties in section 841(b)(1)(A). The district court
also imposed a concurrent twenty-year sentence on a related cocaine count,
which is not at issue in this appeal. Francis did not object at trial or
sentencing to the sufficiency of proof as to the identity of the rock-like
substance found in the pack.
On appeal, Francis argues (1) that her conviction cannot stand; (2)
that section 841(b) was misapplied; and (3) that counsel was ineffective
for failing to challenge at sentencing the proof as to the substance in the
pack. As to each claim, Francis relies on a 1993 Amendment to the notes
following the Guidelines drug-quantity table, which states 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." See United States Sentencing Commission, Guidelines
Manual, App. C. Amend. 487 (Nov. 1995). Francis urges us to extend the
Guidelines definition to section 841's penalty provisions, and to conclude
that the government failed to prove the substance in the pack was the
"'crack form of cocaine base.'"
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We note Francis may have waived any sufficiency-of-the-evidence
challenge to her conviction based on the identity of the substance at
issue, by stipulating that it was cocaine base. See United States v.
Melina, 101 F.3d 567, 572 (8th Cir. 1996). Nevertheless, as the government
does not specifically raise the issue of waiver, we reject Francis's
challenge on the merits. In addition to the parties' stipulation that the
substance was cocaine base, the government's evidence established without
contradiction that the substance was in rock form, and that cocaine base
or crack is the solid matter resulting from processing cocaine
hydrochloride. See United States v. Wilson, 103 F.3d 1402, 1406-07 (8th
Cir. 1997) (standard of review; evidence was sufficient to support
conviction involving cocaine base where forensic chemist testified without
contradiction that substance was cocaine base, even though chemist did not
specifically say substance was "'cocaine base which is the same as
crack'").
Additionally, we conclude the district court did not plainly err in
sentencing Francis--who has two prior felony drug convictions--under the
enhanced statutory minimum for cocaine base. See 21 U.S.C. § 841(b)(1)(A)
(person convicted of possessing with intent to distribute 50 grams or more
of "a mixture or substance which contains 'cocaine base'" and has two or
more prior drug felony convictions, subject to mandatory life sentence);
Wilson, 103 F.3d at 1407 (no error in sentencing pursuant to enhanced
statute for cocaine base where uncontradicted trial testimony established
substance was cocaine base); United States v. Griggs, 71 F.3d 276, 279 (8th
Cir. 1995) (standard of review when defendant does not object); United
States v. Roberts, 953 F.2d 351, 354 (8th Cir.) (court may rely on evidence
presented at trial when sentencing defendant), cert. denied, 505 U.S. 1210(1992).
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Moreover, we reject Francis's suggestion that the Guidelines
definition of cocaine base constructively amends 18 U.S.C. § 841. Cf.
United States v. Stoneking, 60 F.3d 399, 402 (8th Cir. 1995) (en banc)
(explaining Sentencing Commission cannot override Congress by amending
Guidelines), cert. denied, 116 S. Ct. 926 (1996); see USSG § 2D1.1(c), note
(D) (defining cocaine base "for purposes of this guideline" as crack)
(emphasis added).
Finally, while we generally do not review ineffective-assistance-of-
counsel claims on direct appeal, see United States v. Martin, 62 F.3d 1009,
1012 (8th Cir. 1995), cert. denied, 116 S. Ct. 1556 (1996), the record is
sufficiently developed for us to conclude that there is no reasonable
probability Francis's sentence would have been any different had counsel
objected at sentencing. See Strickland v. Washington, 466 U.S. 668, 694
(1984) (to show ineffective assistance of counsel, defendant must
demonstrate reasonable probability that, but for counsel's unprofessional
errors, result of proceeding would have been different); United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (no need to address counsel's
behavior where no showing of prejudice); Martin, 62 F.3d at 1012 (deciding
ineffective-assistance claim on merits where arguments did not incorporate
facts outside the record).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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