The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa. 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v. * District Court for the * Northern District of Iowa Claude Fuller, * * [UNPUBLISHED] Appellant.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 a

ppeals from the final judgment entered in the District Court for 1 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, i n vio lationof 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentence d Fullerto 120 months imprisonment and eight years supervised release. Counsel ha s filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Fuller has filed-2-

a pro se supplemental brief. For reversal, counsel argues that the evidence wa s insuffici ent

to prove Fuller & s guilt and that Fuller & s prior state conviction did no t constitute a felony for purposes of 21 U.S.C. § 841(b)(1)(B) & s senten cing enhancement; Ful ler argues pro se that the government failed to prove the cocaine base was crac k 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 en hanced. See 21 U.S.C. § 851(a)(2) (to enhance sentence, person mus t hav e either waived or been afforded prosecution by indictment “for the offense fo r which such increased punishment may be imposed”). For the reas ons 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 bey ond a reasonable doubt, and we review the evidenc e in the light most favorable to the government and accept all reasonabl e inferences supporting the verdic t. 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 verdi ct. The government & s evidence showed authorities seized cash from Fuller an d also seize d crack cocaine, drug paraphernalia, and additional cash from a residenc e linked to Fuller; Fuller admitted that the crack w as his, that the seized money belonged to him and some of it represented drug proce eds, and that he had cut and packaged the crack found at the residence. The evidence further established that the quantity an d packaging indicated an intent to distribute, an d that Fuller had sold crack cocaine to an undercoverof

ficer 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 f

or possessing less than 15 grams of cocaine was a prior drug felony fo r purposes of 21 U.S.C. § 841(b)(1)(B). See 21 U.S.C. § 802(13) (stating as relevan t that “felony” means any state offense classif ied by applicable state law as felony); 720 Ill. Comp. Stat. 570/402(a)(2) and (c) (West 1993) (person who possesses less than 15-3-

grams of cocaine is guilty of Class 4 felony). Because Fuller was prosecuted b y 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) (§ 8 51(a)(2) refers to prosecution of current offense, not prior conviction; becaus e instanto ffenses of conviction were prosecuted by indictment, § 851(a)(2) did no t preclude use of prior state conviction to trigger statutory mandatory minimum unde r § 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 offens e level using the Guidelines for cocaine base. See United States v. Montanye , 996 F.2d 190, 19 2 (8th Cir. 1993) (en banc); United States v. Williams , 994 F.2d 1287, 129 4 (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 co caine and that Fuller had sold crack cocaine to

anundercover officer. Moreover, the laboratory reports admitted into evidenc e indicated that the seized drugs were “cream chunks” determined to be co caine base and that the “rock-like substance[s]” sold to the underco ver officer also were cocaine base. Cf. United States v. Stewart , 122 F.3d 625, 627-28 (8th Cir. 1997) (ev idence supported findi ng that defendant sold crack cocaine when undercover officer testified he ha d purchased crack cocaine from defendant on three occasions and identified substances when in troduced into evidence, and government entered into evidence lab report s indicating cocaine base was “rock-like”).

We h ave reviewed the record for any nonfrivolous issues in accordance with Penson v. Ohio , 488 U.S. 75, 80 (1988), and have found none.
Accordingl y, we affirm the judgment of the district court. Fuller & s motion fo r appointment of appellate counsel is denied.-4-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.