UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4150

MICHAEL ERNEST THOMPSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4298

WALTER ROBERT HOUCHINS,

Defendant-Appellant.

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)

Submitted: December 19, 1996

Decided: January 6, 1997

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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

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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.

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

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*McCain met Thompson at the airport that morning.

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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

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