* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. TROY LAMONT HOLLOWAY, Defendant - Appellant. No. 97-1008 (D.C. No. 96-CR-253-B) (D. Colo.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges. **

Troy Lamont Holloway appeals from his sentence for attempted possession of cocaine base in violation of 21 U.S.C . §§ 844(a) and 846. Our jurisdiction arises under 28 U.S.C. § 1291 and we a ffirm. Mr. Holloway pled guilty to a single-count informat ion charging him with “attempt to possess more than 5 grams of a mixture or substance containing a- 2 -

detectable amount of cocaine base (commonly known a s ‘crack cocaine’ or ‘crack’)” and was sentenced to 60 months of impriso nment. See Fed. R. Crim. P. 11(e)(1)(C). On appeal, he raises one issue: “[w]h ether [s]entencing was improper because the government did not affirmative ly show that the cocaine derivative that was seized was of such a nature to qualify for application of the ‘crack’ sentencing guidelines.” See U.S.S.G. § 2D1.1(c). We review the district court’s factual findings forclear error and its application of the Sentencing Guidelines de novo. United States v. Kissick , 69 F.3d 1048, 1051 (10th Cir. 1995). After reviewing the record, we hold that the district court’s finding that the substance was cra ck cocaine was not clearly erroneous and that the court correctly applied the Sentencing Guidelines. Mr. Holloway specifically pled guilty to attempted possession of crack cocaine. The district court was entitled to rely upon that admission. See, e.g. , 2 R. 10-14, 21-24. Mr. Holloway cites United States v. James , 78 F.3d 851 (3d Cir.), cert. denied , 117 S. Ct. 128 (1996), for the proposition that t he government retains the burden to show that the substance at is sue is crack even after the defendant enters a plea of guilty. James is distinguishable because the only references to “crack cocaine” in that case were mad e by the prosecutor, while “the indictment, the defendant, and the court at the ple a colloquy sp[oke] in terms of cocaine base.” Id. at 856. In contrast, the substance at issue in th is appeal was- 3 -

described as “cocaine base (commonly known as ‘crac k cocaine’ or ‘crack’)” throughout the proceedings. See, e.g. , 1 R. 2; 2 R. 12, 21-22. The district court also relied upon Mr. Holloway’s admissions, recorde d in the presentence report, that he had been addicted to crack cocaine since hi s early twenties and that he usually smoked three to four grams of crack each day. 3 R. 12-13. The court’s finding is further supported by Mr. Holloway’s lett ers of mitigation, describing himself as a crack addict. Id. Mr. Holloway argues that the district court incorre ctly applied the enhanced penalties for crack-related crimes because sodium b icarbonate was not present in the substance found in his possession. Note (D) to the Drug Quantity Table of the guidelines provides that: “Cocaine base,” for the purposes of this guideline, means “crack.” “Crack” is the street name for a form of cocaine ba se, usually prepared by processing cocaine hydrochloride and so dium bicarbonate, and usually appearing in a lumpy, rock like form. U.S.S.G. § 2D1.1(c), Note (D). Mr. Holloway reads this definition to require that any substance identified as “cocaine base” must be shown to contain sodium bicarbonate before it may be treated as “crack” forsentencing purposes. Notes or commentary to the sentencing guidelines ar e considered binding authority unless either violative of the Constituti on or a federal statute, or clearly inconsistent with the guideline the commentary purp orts to explain. Stinson v. United States , 508 U.S. 36, 45 (1993). Therefore, we must const rue the- 4 -

Guidelines’ use of the term “cocaine base” in accor dance with the definition set out in Note D. Because Mr. Holloway’s interpretati on would require us to ignore the word “usually” in that definition, we reject it

. We interpret the qualifier “usually” in the phrase “usually prepared . . . with sodium bicarbonate” as an acknowledgment that other methods of crack preparation exist and that not all forms of “cocain e base” need contain sodium bicarbonate to qualify as crack for sentencing purp oses. Indeed, it appears that the method which uses sodium bicarbonate is the lea st sophisticated and yields the lowest purity. See James , 78 F.3d at 856-57; United States v. Fulton , 960 F. Supp. 479, 494 (D. Mass. 1997). Although the labor atory report does not indicate the presence of sodium bicarbonate in the cocaine b ase tested, the district court was correct to apply the enhanced penalties for cra ck-related crimes to Mr. Holloway’s case. AFFIRMED.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge