United States v. Michael Ernest Thompson, United States of America v. Walter Robert Houchins, 105 F.3d 649, 4th Cir. (1997)
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Scribd Government DocsUnited States v. Michael Ernest Thompson, United States of America v. Walter Robert Houchins, 105 F.3d 649, 4th Cir. (1997)
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Scribd Government Docs105 F.
3d 649
NOTICE: Fourth Circuit Local Rule 36(c) states that citation
of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Ernest THOMPSON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Walter Robert HOUCHINS, Defendant-Appellant.
Nos. 96-4150, 96-4298.
United States Court of Appeals, Fourth Circuit.
Submitted Dec. 19, 1996.
Decided Jan. 6, 1997.
Appeals from the United States District Court for the Middle District of
North Carolina, at Winston-Salem. Frank W. Bullock, Jr., Chief District
Judge; James A. Beaty, Jr., District Judge. (CR-95-181-6)
Michael A. Grace, Lisa S. Costner, TISDALE, GRACE, MENEFEE &
COSTNER, P.A., Winston-Salem, North Carolina; David B. Freedman,
WHITE & CRUMPLER, Winston-Salem, North Carolina, for Appellants.
Walter C. Holton, Jr., United States Attorney, Robert M. Hamilton,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
M.D.N.C.
AFFIRMED.
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
OPINION
PER CURIAM:
Michael Ernest Thompson and Walter Robert Houchins both pled guilty to
conspiracy to possess more than 50 grams of cocaine base ("crack") with intent
to distribute, 21 U.S.C. 846 (1994) (Count One), and attempt to possess 1500
grams of cocaine hydrochloride with intent to distribute, 21 U.S.C. 846
(Count Two). In connection with Count One, Thompson reserved the right to
argue at sentencing that the substance involved was cocaine hydrochloride
(powder cocaine). Thompson was sentenced to 135 months imprisonment and
Houchins received a sentence of 170 months. Both appeal their sentences,
contending that they should have been sentenced under the lower penalties for
powder cocaine. We affirm.
On July 3, 1995, a federal prisoner contacted Drug Enforcement Administration
agent Charles Graham in Greensboro, North Carolina, and told him that
Houchins was trying to find out who his source had been. Graham told the
prisoner to give Houchins his number and within an hour Houchins called
Graham. At Thompson's sentencing hearing, Graham testified that Houchins
said he wanted to buy a kilogram of powder cocaine; they agreed on a price of
$22,000. Later the same day, Houchins called again and asked whether he
could get a kilogram of crack instead, to expedite matters, because his
customers wanted crack. Graham said he could have the crack in two days.
Houchins then explained that he wanted the end-product to be crack with a
yellow color (indicating more potency), that he really preferred to buy powder
cocaine because he could test its purity more easily, and that he wanted to get at
least 36 ounces of crack from a kilogram of powder cocaine. Graham and
Houchins agreed to meet on July 5. Houchins said his partner in New Jersey,
who handled the money, would have to come down so they could "do their
thing."
On July 5, Graham met Houchins and Thompson at a restaurant where they
decided to pay for one kilogram of powder cocaine and have Graham front
them another half-kilogram. Thompson expressed the same concerns as
Houchins about whether the kilogram would yield 36 ounces when it was
cooked and the color of the final product. Two hours later, Graham met
Houchins and Thompson at a hotel where they showed him a bag of cash and
he displayed the cocaine and asked whether they wanted to test it. Thompson
said he did. They all went into a hotel room, where both defendants were
arrested. Authorities then searched the apartment Houchins shared with
codefendant Douglas McCain.* In Houchins' bedroom, they found 13 grams of
crack, cocaine residue and a razor blade in a container, boxes of ammunition
and plastic bags, and receipts for money orders sent to Thompson. Another 17
grams of crack and two firearms were in McCain's room. Thompson's traveling
bag was also in the apartment; it contained a ledger in which Houchins' street
name appeared several times.
4
Thompson and Houchins both maintain that the district court clearly erred in
converting the 1.5 kilograms of powder cocaine to crack for sentencing
purposes because the only evidence that Appellants intended to cook the
powder cocaine into crack was Houchins' statements. They contend that his
statements were ambiguous puffery and were elicited by Agent Graham. The
record does not bear out these assertions. Houchins told the agent that he
wanted to buy powder cocaine which would convert into 36 ounces or more of
good quality crack. Thompson made similar statements. This was sufficient for
the court to find by a preponderance of the evidence that their intent was to
convert the powder cocaine to crack for distribution. Consequently, a sentence
under the crack guidelines was appropriate. United States v. McMurray, 34
F.3d 1405, 1414 (8th Cir.1994), cert. denied, --- U.S. ----, 63 U.S.L.W. 3627
(U.S. Feb. 21, 1995) (No. 94-7605); United States v. Paz, 927 F.2d 176, 180
(4th Cir.1991). The government was not required to prove that Appellants
would have converted the cocaine into crack rather than some other form of
cocaine base. This court has held that, for sentencing purposes, the term
"cocaine base" includes crack. United States v. Pinto, 905 F.2d 47, 49 (4th
Cir.1990).
Thompson contends on appeal that the court failed to find that Houchins'
statements to the agent were within the scope of his agreement with Houchins.
His argument is without basis. Thompson argued at sentencing that there was
no evidence, beyond conjecture, that he knew Houchins intended to convert the
cocaine to crack. However, the district court found that the government had
proved that Thompson and Houchins had conspired to possess crack for
distribution and that Thompson had come from New Jersey to North Carolina
for the purpose of converting the powder cocaine to crack. The court's finding
resolved the issue and was not clearly erroneous.
The convictions and sentences are therefore affirmed. We dispense with oral
argument because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the decisional
process.
AFFIRMED
