The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1463WMS

___________ United States of America, * * Appellee, * * v. * Appeal from the * United States District Court Steven W. Brown, * for the Western District * of Missouri Appellant. *

___________ Submitted: June 9, 1998 Filed: September 9, 1998

___________ Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER , District Judge 1

___________ OWEN M. PANNER, District Judge.
Ajury in the Western District of Missouri convicted appellant Steven W. Brown of conspira cy to distribute a controlled substance in violation of 21 U.S.C. § 846, an d possession, with intent to distribute, a controlled substance in violation of 21 U.S.C. § 841(a)(1). Brown was sentenced to serve 360 months in prison. We affirm the2

convictions as well as the district court's denial of Brown's pre-trial motion to suppres s evidence and statements, but remand for resentencing.
BACKGROUND The police received an anonymous tip that Brown would be arriving from St. Louis at a certain time with five ounces of "crack" cocaine. The caller des cribed the vehicle that Brown would be driving, including its license number, and a lso identified the woman who woul d be accompanying Brown. The police previously had received similar tip s concerning Brown. At the appointed hour, they waited along the highway in an unmarked vehicle until they spotted Brown's car. Except for a few minor details, everything seemed consistent with the information that had been received. Police followed Brown's car, intending to stop it once backup units arrived, but he pulled off the highway into a gasoline station . From this point onward, the police version diverges sharply from that told by Brown and his companion. It is undisputed, however, that the police approached Brown, is sued him a Miranda warning, and told him that they suspected he was transporting drugs. Although the police deny that Brown was i n custody, th ey concede that they would not have let him drive away. Police searche d Brown's vehicle and found a small quantity of marijuana in a jacket on the front seat of the car. After taking Brown and his companion to jail, a police canine unit searched the entire car including the engine compartment, and eventually discovered 48.70 grams of cocaine base hidden beneath the battery. Brown was then interviewed by officers. He admittedknowledge of the drugs and made statements aimed at exculpating hi s companion.
Brown was soon released from jail. The jury heard testimony that he continue d transporting and dist

ributing "crack" cocaine until he was re-arrested the following year.3

PRETRIAL MOTION TO SUPPRESS EVIDENCE AND STATEMENTS
The district court found that although the police had a sufficient basis to stop the car, they did not actually do so, hence this was only an investigative stop pursuant t o Terry v. Ohio , 392 U.S. 1 (1968). The district court also found that Brown and hi s companionvoluntarily consented to the search of the car, and therefore denied Brown's mot ionto suppress the evidence seized and the statements that he made to polic e following his arrest. We review the district court's f indings of fact for clear error. United States v. Garcia , 23 F.3d 1331, 1334 (8th Cir. 1994). Whether Brown was deprived of his rights under the Fourth and Fifth Amendments is a mixed question of law and fact that we review de novo

. Id. While we are inc lined to believe that Brown was in custody, the endresult is the same. The police had a sufficient basis to stop the car, and the district court's finding that Brow n voluntarily consented to the search was not clearly erroneous. Accordingly, the district court did not err by denying Brown's motion to suppress.
TRIAL
Bro wn was ordered to furnish a handwriting sample so that it could be compared to certain incriminating documents which allegedly were in his handwriting. He refused. At trial, the jury wa s informed of Brown's refusal. Brown contends that this violated his Fifth A mendment privilege against self-incrimination. We disagree. A handwritin g exemplar is non-testimonial. Gilbert v. California , 388 U.S. 263, 266-67 (1967)

. Brown's refu sal to give an exemplar was not privileged, and the jury could properl y consider his refusal as evidence that the results of that testing would have been adverse.
We also hold that the distric t court did not abuse its discretion in denying Brown's request for a continuance, at the clos e of the government's case, so that his counsel could interview a p rospective witness. Based upon the scant information that defense counsel provided to the court, it was very unlikely that this individual could provide relevan t testimony, let alone evidence that might have affected the outcome of the trial.In United States v. Kang , 143 F.3d 379 (8th Cir. 1998), we said that fo r 2 pur poses of the Sentencing Guidelines the terms "cocaine base" and "crack" ar e synonymous. Id

at 380. However, the context of that dis cussion was a plea agreement in which the defendant admitted poss essing "cocaine base" and the question on appeal was whether he should be sentenced for possession of crack or pursuant to th e gu ideline that applies to other forms of cocaine. Thus, we were concerned with th e meanin g of the term "cocaine base" as it is used in the Sentencing Guidelines. B y contrast, the dispute here concerns the definiti on of "cocaine base" from the standpoint of a chemist. 4 SENTENCE
Br own contends the government failed to prove that he was distributing "crack " coc aine as opposed to some other form of cocaine base. We review for clear error th e district court's findings as to the identity of the drug, reversing only if we are left with a d e finite and firm conviction that a mistake has been made. United States v. Covington , 133 F.3d 639, 643 (8th Cir. 1998). During Brown's trial, a government chemist testified that the substance seized was "cocaine bas e." However, this witness did not expressly state that the substance wa s "c rack" cocaine and she appeared to be unfamiliar with the process for manufacturin g crack. For purposes of the Sentencing Guidelines the term "cocaine ba se" is limited to the particular form of cocaine base known as "crack" and does not include certain othe r substa nces that a chemist would also classify as cocaine base. See United States v

. Montoy a , 87 F.3d 621, 623 (2d Cir. 1996) (per curiam); U.S.S.G. Appendix C , Amendme nt

487 (effective Nov. 1, 1993). Therefore, testimony that a substanc e c hemically is "cocaine base" does not entirely exclude the possibility that the substance may be a form of cocaine base other than "crack." 2 We nevertheless affirm the district court's finding that Brown was di stributing crack cocaine. While cocaine base can theoretically include substances other than crack, see Montoya, 87 F.3d at 623, there was no evidence here that Brown was distributing cocaIn Brown's case, a finding that the controlled substance was crack rather than 3 ordinary cocaine adds approximately twenty years to the duration of his sentence, or about a five-fold increase. 5 paste or other exotic forms of cocaine base. In addition, crack cocaine usually has a distinctive appearance and form that makes it easy to recognize. Cf U.S .S.G. § 2D1.1(D); United Stat

es v. Abdul, 122 F.3d 477, 479 (7th Cir. 1997). Finally, we note that among the most knowled geable experts on crack are those who regularly smoke it or sell it. At trial, the government called a number of users and di stributors, who each testified that the su bstance they obtained from Brown was crack and offered no complaints about th e quali ty of the merchandise they had received. The verdict of the marketplace is stron g confirmation that Brown was selling genuine crack. Although the government's chemist ought to have been better informed about the process for manufacturing crack, th e government

was not required to prove that this batch was actually manufactured by the sodium bicarbonate process. Abdul , 122 F.3d at 479. Brown also argues that beca use the penalty for crack is so much more severe than the penalty for other forms of cocaine, the government must prove th e identity of the drug 3 by clear and convincing evidence rather than the preponderance standard applicable t o other factual questions at sentencing. Like many of our sister circuits, we previously have at least acknowledged "the possibility that the preponderance standard the Court approved for garden variety sentencing determinations may fail to comport with due process where, as here, a sentencing enhancement factor becomes 'a tail which wags the dog of th e substantive o ffense.' " United States v. Townley , 929 F.2d 365, 369 (8th Cir. 1991) , quoting Mc Millan v. Pennsylvania , 477 U.S. 79, 88 (1986). See also United States v

. Watts , 519 U.S. 148, 117 S. Ct. 633, 637 (1997) (acknowledging divergence of opinion within the lower courts on thi s question); United States v. Galloway , 976 F.2d 414, 425- 26 (8th Cir. 1992) (en banc) (acknowl edging the possibility that due process may require a high er standard of proof than a mere preponderance "if the punishment meted ou t foll owing application of the sentencing factors overwhelms or is extremel y disproportionate to the punishment that would otherwise be imposed").6

In Townley , we did not decide this question because we concluded that the result in that case would be the same under either standard. Townley , 929 F.2d at 370. For the same reason, we decline to decide that issue here. There was abundant testimony tha t Brown was transporting and distributing crack, and no evidence w hich suggests that it was any other s ubstance. Even assuming, arguendo , that the clear and convincing standar d applies, the government has met its burden of proof.
Brown also challenges the district court's finding that he was responsible fo r between 150 and 500 grams of crack. We will reverse the district court's determination of the quantit y of drugs only if it is clearly erroneous. United States v. Alexander , 98 2 F.2d 262, 267 (8th Cir. 1992). The presentence investigation repo rt recommended that the district court find that Brown was responsible for 150 to 500 grams. At sentencing , however, the prosecutor told the court:

I bel ieve that the evidence at trial established that the amount o f cocaine base or crack would be 50 grams -- more than 50 grams but less than 150 grams. So in that respect, I would differ with -- no t diff er with the presentence report, but I'm not going to bring i n witnesse s to testify to those amounts that would bring it over tha t amount. So I would

contend to the Court that the evidence at trial did support a finding that there were in excess of 50 grams but less than 150 grams . . . . (Sent. Tr. 11-12). Notwithstanding that concession, the district court entered a finding that Brown was responsible for 150 to 500 grams. Although the district court was not bound by the government's concession, the court did not articulate any reason for rejecting it, or even clearly state that the court wa s rejecting th at concession. On this record, we have no assurance that the rejection wa s intentional rather than inadvertent. We previously hav e held that once a defendant objects to a factual allegation in the presentence report, the court must make (i) a finding as to the7

allegatio n, or (ii) a determination that no such finding is necessary because the matte r controve rted will not be taken into account in sentencing. Covington , 133 F.3d at 633 ; United States v. Granados , 962 F.2d 767, 7 71-72 (8th Cir. 1992). If the court chooses to make a fi nding as to the factual allegation, the government must introduce evidenc e sufficien t to convince the Court by a preponderance of the evidence that the fact i n question exists. Id. In this case, the government did not introduce any evidence to prove that Brow n was responsible for over 150 grams of crack, and further conceded that the testimony at trial was insuf ficient to establish that fact. Therefore, we hold that the district court clearl y erred b y finding that Brown was responsible for more than 150 grams of crack, and w e remand for resentencing. Brown's remaining contentions will not detain us long. The district court did not err in denying Brown a two-level reduction for acceptance of responsibility. Ordinarily, a defendant who puts the governme nt to its burden of proof at trial by denying the essential factual e lements of guilt, is convicted, and only then admits guilt and expresses remorse, is not entitled to a reduction for acceptance of responsibility. United States v. Amos , 952 F.2d992, 995 (8th Cir. 1991). The district court adequately justified its decision not to give Brown this reduction. The district court also acted properly by increasingBrown's sentence four levels for being an organizer or leader of criminal activity involving five or more participants. A sentencing court's determination of a participant's role in the offense pursuant to U.S.S.G. § 3B1.1 is rev iewed under the clearly erroneous standard. United States v. Skorniak , 59 F.3d 750, 757 (8th Cir. 1995). There was testimony that Brown had a network of dealers working under him. While not all were working for hi m at the same time, and some might have been merely buying for themselves, the district court reasonably could have foun d that at various times during the conspiracy Brown had at least four helpers or underlings, and that Brown was their leader.8 CONCLUSION
We affirm Brown's convictions as well as the district court's denial of Brown's pretrial motion to suppress evidence and statements. We reverse the district court's finding that Brown was responsible for more than 150 grams of crack and remand fo r resentencing.
Affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.