UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 99-4146

WILLIAM CORREY TALLEY, a/k/a Rat

Rat,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Fayetteville.

Terrence W. Boyle, Chief District Judge.

(CR-94-65-BO)

Submitted: November 9, 1999

Decided: November 22, 1999

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

_________________________________________________________________

COUNSEL

Michael G. Howell, MCNEIL & GILBERT, Raleigh, North Carolina,

for Appellant. Janice McKenzie Cole, United States Attorney, Anne

M. Hayes, Assistant United States Attorney, John Howarth Bennett,

Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William Correy Talley appeals from his conviction and sentence

for conspiracy to distribute and to possess with intent to distribute

cocaine base (crack). We affirm Talley's conviction. However, we

vacate his sentence and remand for further fact-finding consistent

with this opinion.

I.

Dealing first with Talley's contention that the Government improperly used three of its four peremptory challenges consecutively to

excuse black jurors, we find that the district court did not clearly err

in determining that Talley's objection was untimely. A Batson challenge must be raised no later than before the dismissal of the jury

venire. See Morning v. Zapata Protein, 128 F.3d 213, 216 (4th Cir.

1997). Here, it is unclear when the venire was dismissed, although the

district court stated at the time of defense counsel's motion that the

jury was "being impaneled." However, while the court in Morning

held that a Batson challenge raised after the venire had been excused

was untimely, the court did not conclude that any challenge raised

before the venire was excused was necessarily timely. In fact, the

court cited approvingly United States v. Joe, 928 F.2d 99, 103 (4th

Cir. 1991), which urged that a Batson objection be raised and evaluated as early as possible.

The district court's factual determination that the objection could

have been raised at an earlier time is reviewed for clear error. See

Jones v. Plaster, 57 F.3d 417, 425 (4th Cir. 1995). We find that the

district court did not clearly err in determining that the objection was

untimely. Because we determine that Talley waived his objection, we

do not reach the issue of whether he has established a prima facie case

under Batson v. Kentucky, 476 U.S. 79 (1986).

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II.

We need not dwell long on Talley's next complaint: that the district

court erred in denying his motion to suppress the testimony of several

witnesses under 18 U.S.C. § 201(c) (1994). We have already held that

the Government does not violate § 201(c) by granting immunity or

leniency or entering into plea agreements to obtain testimony. See

United States v. Richardson, ___ F.3d ___, 1999 WL 686892 (4th Cir.

1999).

III.

Talley next argues that, because neither crack nor cocaine base

appears on the lists of scheduled controlled substances, the district

court should have granted his motion for judgment of acquittal. Talley

was convicted of conspiring to violate 21 U.S.C.§ 841(a)(1) (1994).

Section 841(a)(1) makes it unlawful for any person to "distribute, or

. . . possess with intent to . . . distribute, . . . a controlled substance."

21 U.S.C. § 802(6) (1994) defines "controlled substance" as "a drug

or other substance, or immediate precursor, included in schedule I, II,

III, IV, or V of part B of this subchapter." Although Schedule II lists

"[c]oca leaves . . . cocaine, its salts, optical and geometric isomers,

and salts of isomers; ecgonine, its derivatives, their salts, isomers, and

salts of isomers; or any compound, mixture, or preparation, which

contains any quantity of any of the substances referred to in this paragraph," neither "cocaine base" nor "crack" is specifically enumerated

as a controlled substance. See 21 U.S.C.§ 812(c) (1994). Talley was

charged with a conspiracy involving "cocaine base (crack)."

We find that Talley's claim is meritless. "Cocaine base" clearly

falls within the definition of "cocaine, its derivatives, or any compound or mixture which contains cocaine." See United States v.

Deisch, 20 F.3d 139, 149-52 (5th Cir. 1994); United States v. Sloan,

97 F.3d 1378, 1381-82 (11th Cir. 1996).

In a related argument, Talley asserts that the Supreme Court's decision in Jones v. United States, 526 U.S. 227, 67 U.S.L.W. 4204

(1999), requires a different result. Jones held that the three different

intent formulations in the federal carjacking statute, which provide for

three corresponding maximum sentences, constitute elements of the

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offense and are not merely sentencing factors. See 67 U.S.L.W. at

4208. The Court also stated that "under the Due Process Clause . . .

and the notice and jury trial guarantees of the Sixth Amendment, any

fact (other than prior conviction) that increases the maximum penalty

for a crime must be charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt." Id. at 4209 n.6. Talley contends

that, under Jones, the weight and type of the controlled substance,

which will control the maximum sentence imposed, are elements of

the crime.

Talley did not raise the Jones claim below, and therefore, we

review for plain error. See United States v. Castner, 50 F.3d 1267,

1277 (4th Cir. 1995). Because Talley's analysis of Jones is novel and

he cites no case from any court adopting his interpretation of its applicability in drug cases, it cannot be said that the district court plainly

and obviously erred in denying the motion for acquittal, especially

since Jones had not even been decided when Talley was sentenced.

IV.

Next, Talley complains of the district court's factual findings

regarding the drug quantity for which Talley was held responsible at

sentencing. We find that the district court held Talley responsible for

over 1.5 kilograms of crack cocaine without a proper factual finding.

The probation officer identified three witnesses who articulated

specific amounts of drugs in their trial testimony. Stewart McDonald

claimed that Talley was responsible for over 10.2 kilograms of crack

cocaine. Ronald Jerome Perkins recalled a .2 kilogram (nine ounces)

sale of powder cocaine. Finally, a conservative estimate of Earl

Thornton's recollection of his dealings with Talley resulted in responsibility for 2.4 kilograms of powder cocaine. Therefore, the probation

officer recommended that Talley be held accountable for 10.2 kilograms of crack cocaine and 2.6 kilograms of powder cocaine.

Talley objected to the acceptance of McDonald's testimony, contending that he was a contradictory and unbelievable witness. The district court stated that "even if you discount the testimony about the

10.2 kilograms, there's undisputed testimony about the [2.6 kilograms] . . . I find by a preponderance of the evidence in the record

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that a level 38 is the correct level because it exceeds 1.5 kilograms

of crack cocaine." The court then adopted the factual findings in the

presentence report.

We review the district court's factual findings as to drug quantity

for clear error. See United States v. D'Anjou , 16 F.3d 604, 614 (4th

Cir. 1994). The district court's statement that McDonald's testimony

could be discounted is not reconcilable with the district court's adoption of the presentence report, which credited McDonald's testimony.

Therefore, it is unclear whether or not the district court accepted

McDonald's estimates. More importantly, the district court's entire

fact-finding in this regard was based on an erroneous premise.

According to the presentence report, if McDonald's testimony were

disregarded, Talley could only be held responsible for 2.6 kilograms

of powder cocaine, which would result in an offense level of 28. See

U.S. Sentencing Guidelines Manual § 2D1.1(c) (1998). The district

court incorrectly concluded that the remaining 2.6 kilograms were

crack cocaine and, thus, reasoned that McDonald's testimony would

not have increased Talley's sentence. See id. (1.5 kilograms or more

of crack cocaine equals a base offense level of 38). Because it is

unclear how the district court would have dealt with McDonald's testimony had it realized the actual affect on Talley's sentence, we conclude that further fact-finding is required.

V.

Lastly, Talley contends that the court erred in sentencing him as a

career offender, because one of his predicate convictions occurred

during the time period of the instant conspiracy. While Talley asserts

that a predicate conviction, for which he was sentenced in 1991, was

sustained subsequent to the conduct forming the basis of the current

offense, the record is clear that Talley continued his unlawful activity

with drugs and was buying and selling crack cocaine as late as 1994.

Therefore, Talley's contention is without merit. See United States v.

Elwell, 984 F.2d 1289, 1298 (1st Cir. 1993).

Accordingly, we affirm Talley's conviction. We also affirm the

district court's determination that Talley is a career offender. However, we vacate Talley's sentence and remand for a determination of

the drug type and quantity for which Talley should be held responsi-

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ble. 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 IN PART, VACATED IN PART,

AND REMANDED

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