### Th e Honorable Donald J. Stohr, United States District Judg e 1 

### for the Eastern District of Missouri.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-1832

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri William Lillard, * * [UNPUBLISHED] Appellant. *

___________ Submitted: May 6, 1997 Filed: May 20, 1997

___________ Before McMILLIAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges
.

___________ PER CURIAM. William Lillard appeals his conviction and 200-month sentence i mposed by the United States District Court for the Eastern District of Missouri, 1 after a jury found him guilty of drug and weapon s offenses. Counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and wa s granted leave to withdraw. Lillard has filed a supplemental pro se brief. For the reasons discussed below, we affirm.

In a t wo-count indictment, the government charged Lillard wit h possessing with intent to distribute "50.0 grams or more of a mixture or substance containing cocaine base (crack)," in violation

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of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and with carrying a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S .C. § 924(c)(1). After the jury returned a guilty verdict on bot h charges, the district court imposed sentences of 140 months imprisonment on the drug count anda consecutive 60 months imprisonment on the weapons count, and five years of supervised release.

On appeal, Lillard argues in his pro se brief that the governmen t failed to prove the substance for which he was sentenced was "crack" and not simpl y cocaine base. He also argued his counsel was ineffective i n failing to properly investigate whether his possession of a gun constitute d a § 92 4(c) violation and whether the pants he was wearing could hav e supported the weight of the weapon he allegedly carried.
Lillard d id not challenge in the district court--at trial or a t senten cing--that the government failed to prove the cocaine base h e possessed was "crack" cocaine; thus, we may review only for plain error. See United States v. Robinson , No. 96-1731, 1997 WL 154903 at *2 (8th Cir. Apr. 4, 1997). Where the issue is whether the district court properl y calculated the senten ce based on "crack" cocaine rather than another form of cocaine base (for the purpose of applying the increased sentence fo r crack under U.S. Sent encing Guidelines Manual § 2D1.1(c)), the government bears the burden of proving at sentencing the type of drugs by a preponderance of the evidence. See United States v. Jones , No. 96-2656, 1997 WL 182267, at *2 (8th Cir. Apr. 16, 1997); United States v. Jackson , 64 F.3d 1213, 1219 (8 th Cir. 1995) (stiffer penalties apply to crack form of cocaine base under U.S. Sentencing Guidelines Manual § 2D1.1(c)), cert. denied , 116 S. Ct. 966 (1996).

### -3- We conclude there is no plain error because the government presented evidence t hat the drugs were crack cocaine. Two officers, trained i n identifying drugs, testified that the drugs found were in a hard, rock-lik e formtypical of crack cocaine; an expert criminalist who had tested th e substance testified that the drugs were cocaine base and that cocaine base is "also called crack." There was no contradictory evidence suggestin g that the c ocaine base was not in "crack" form. Cf. United States v
. Wilson , 103 F.3d 1402, 1407 (8th Cir. 1997) (chemist provide d uncontradicted testim ony that substance was cocaine base; irrelevant that chemist did not speci fically say substance was "cocaine base which is the same as c rack"). Thus, to the extent Lillard challenges either th e su fficiencyof the evidence to support the jury's verdict or th e applic ation of the enhanced Guidelines for "crack cocaine," we conclud e there was no plain error. With resp ect to Lillard's ineffective-assistance-of-counsel claims, they ar e more appropriately resolved in a 28 U.S.C. § 2255 motion. Se e United States v. Logan , 49 F.3d 352, 361 (8th Cir. 1995).
Upon rev iew of the record, including the trial transcript, we fin d no other nonfrivolous issue for appeal. See Penson v. Ohio , 488 U.S. 75, 80 (1988). Accordingly, we affirm.
A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.