United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3679

___________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * Western District of Missouri. Michael Johnson, * * [UNPUBLISHED] Appellant. *

___________ Submitted: September 19, 1997 Filed: September 22, 1997

___________ Before FAGG, BOWMAN, and MURPHY, Circuit Judges.

___________ PER CURIAM.

Mi chael Johnson pleaded guilty to an indictment charging him with conspiring to posse ss “cocaine base ( # crack & )” with intent to distribute, in violation of 21 U.S.C. §§ 841(a )(1) and (b)(1)(A), and 846; with distributing “cocaine base ( # crack & ),” i n violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and with possessing “cocaine bas e ( # crack & )” with intent t o distribute, in violation of section 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. The probation officer who prepared Johnson & s presentence repor t attributed 179.9 grams of “cocaine base” to Johnson, and recommended a base offenseThe Honorable Fernando J. Gaitan, Jr., United States District Judge for th e 1 Western District of Missouri.
-2- level of 34, see U.S. Sentencing Guidelines Manual § 2D1.1(c)(3) (1995) (150-50 0 gr ams of cocaine base), and a Guidelines sentencing range of 135 to 168 months

. Johnson disputed whether the controlled substances at issue were “crack cocaine” ; after hearing the government & s evidence, the district court determined the substances 1

were crack and sentenced Johnson to concurrent terms of 135 months imprisonmen t and five years supervised release. Johnson appeals, challenging the district court & s finding as to the identity of the drug involved in his offenses. We affirm.

The Guideli nes define “cocaine base” as “crack,” which in turn is defined a s “the str eet name for a form of cocaine base, usually prepared by processing cocain e hydrochlo ride and sodium bicarbonate, and usually appearing in a lumpy, rocklik e fo rm.” See U.S. Sentencing Guidelines Manual § 2D1.1(c) Note (D) (1995). Th e Drug Enforcement Administration case agent assigned to Johnson & s investigatio n testified at sentencin g that on three occasions, an undercover agent negotiated for and bought crack cocaine from Johnson, that Johnson told the agent during the firs t transactio n

he had cooked powdered cocaine into crack cocaine, that each of th e substanc es was in rock form when purchased by the agent, and that the substanc e Johnson thre w on the ground when he was fleeing from police before his arrest wa s also in rock form. The government introduced into evid ence the controlled substances, as well as photograp hs of a portion of the controlled substances, depicting a rock-like substance. A forensic chemist also testified that the rock form of cocaine is crac k cocaine, and that the material in the photographs was consistent with crack cocain e because of its “small hard form.”

Based on t his evidence, we conclude the district court did not clearly err i n determining the government had proved by a preponderance of the evidence that th e drugs at issue were “crack.” See United States v. Maxwell , 25 F.3d 1389, 1397 (8th-3-

Cir.) (standard of review), cert. denied , 513 U.S. 1031 (1994); United States v

. Stewart , No. 96-3703, 1997 WL 54 2042, at *1, *3 (8th Cir. Aug. 20, 1997) (evidence supported findin g that defendant sold crack cocaine when undercover officer testified he had purchased crack cocaine from defendant on three occasions and identifie d substances when introduced into evidence, and government entered into evidence lab reports indicating cocaine base was “rock-like”); United States v. Williams , 982 F.2d 1209, 1212 (8th Cir. 1992) (identity of controlled substance may be proven throug h circums tantial evidence and opinion testimony; narcotics detective, based on hi s experience and observation, testified substance was crack cocaine).
We also disagree with Johnson & s contention tha t the district court failed to make specific factual findings as to the identity of the drugs at issue. We further conclude the court merely committed a clerical error when it checked the box on the judgment form which includes language stating that the sentencing range does not exceed 2 4 months; to the extent Johnson suggests the court erre d in failing to state the reasons for sentencing Johnson at a particular point in the range, see 18 U.S.C. § 3553(c), any such

error was harmless as he was sentenced at the bottom of the applicable Guideline s imprisonment range, see Fed. R. Crim. P. 52(a).
Accordingly, we affirm.
A true copy.

Attest:

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