* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The 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.

UNITED STATES COURT OF APPEALS Filed 2/4/97 TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellant,
v. RONNIE R. MOCK, Defendant-Appellee. No. 96-3203 (D.C. No. 95-CR-40086-01)

(D. Kan.)

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

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Ronnie R. Mock appeals his sentences entered follow ing a jury trial wherein he was found guilty of distribution of appr oximately ninety grams of marijuana, Count I; distribution of approximately e ighty-six grams of marijuana, Count III; use of a communication facility for the distribution of marijuana, Count IV; unlawful possession of a firearm by a convictedfelon, Count V; and distribution of approximately 5.75 grams of cocaine base, Count VI, in violation of 21 U.S.C. §§ 841(a)(1), 843(b) and 922(g)(1) (19 94).
On appeal, Mr. Mock contends the district court err ed in applying the tenyear mandatory minimum sentence under 21 U.S.C. § 8 41(b)(1)(B)(iii) to his conviction on Count VI for distribution of approxim ately 5.75 grams of cocaine base and in calculating the quantity of drugs invol ved in Counts I, III, IV, and V for purposes of his base offense level. Mr. Mock a sserts the term "cocaine base" in 21 U.S.C. § 841(b)(1) refers only to "crack coca ine" because Congress defined it as such under U.S.S.G. § 2D1.1. Therefore, he a rgues his sentences are erroneous because there is no proof that the cocain e base at issue was "crack cocaine" and the district court did not make a spec ific factual finding the cocaine base was crack.1 The sentencing guidelines punish "cocaine base" o r "crack cocaine" 100

times more harshly than other forms of cocaine. U. S.S.G. § 2D1.1.
-3- The presentence report calculated Mr. Mock's senten ces for Counts I, III, IV, and V based on the finding that the "cocaine ba se" involved was "crack cocaine." 1 His sentence for Count VI was calculated pursuantto 21 U.S.C. § 841(b)(1)(B)(iii), which sets a mandatory minimum o f ten years imprisonment for a violation of 21 U.S.C. § 841(a) involving five gr ams or more of cocaine base when the defendant has a prior felony drug convicti on. In response to the court's question at sentencing, Mr. Mock stated, "There's n othing substantive in the presentence report that I have an objection to at a ll."
Although it is the government's burden of proof at sentencing to establish the type of cocaine, "'the burden of alleging factu al inaccuracies of the presentence report is on the defendant.'" United States v. Richardson , 86 F.3d 1537, 1554 (10th Cir.) (quoting United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994), cert. denied, 115 S. Ct. 1117 (1995)), cert. denied, 117 S. Ct. 588 (1996). Failure to object to a fact in a presenten ce report acts as an admission of fact. Richardson , 86 F.3d at 1554 (quoting Deninno , 29 F.3d at 580). Mr. Mock failed to object to the presentence report's calcul ation of his sentences and base offense level based on the enhanced provisions for cocaine base/crack cocaine.2We note that the district court adopted the findi ngs of the presentence

report which included a finding that on August 16, 1995, the confidential informant purchased "5.75 grams of crack cocaine" f or $500 from Mr. Mock.
-4- Therefore, we review for plain error. Richardson , 86 F.3d at 1554. "'However, factual disputes do not rise to the level of plain error.'" Richardson , 86 F.3d at 1554 (quoting Deninno , 29 F.3d at 580). By failing to object to the sco ring of the cocaine base, Mr. Mock has in effect waived the iss ue for appeal and his arguments based on the type of cocaine used for sentencing must fail. 2
AFFIRMED.
Entered for the Court
WADE BRORBY United States Circuit Judge