### The Honorable D. Brook Bartlett, United States District 1 

### Judge for the Western District of Missouri. ___________ No. 96-1261

___________ United States of America, * * Plaintiff/Appellee * * Ap peal from the United State s v. * Dis trict Court for the Wester n * District of Missouri John W. McGrady, also known as * Walking John, * * Defendant/Appellant. *

___________ Submitted: September 13, 1996 Filed: October 3, 1996

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

___________ MURPHY, Circuit Judge.

John W. M cGrady pled guilty to two counts of distributing crac k cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The distric t court sentenced him to fifty-seven months imprisonment. On appeal ,

1 McGradycontends that his sentence was improperly calculated. He claims the district court er red by overstating the amount of crack with which he
was involved and by not treating him as a minor or minimal participan t under § 3B1.2 of the Sentencing Guidelines. We affirm.
McGrady disputes the amount of crack attributed to him. He claim s that the government did not establish that he was responsible for 35 o r more grams of crack, the amount necessary for a base offense level of 30. There was a variance between the

### In the plea agreement, the parties had indicated they 2 

### believed the amount of crack "to be used in making the guideline calculation is more than 35 grams but less than 50 grams, which results in a base offense level of 30." weight of the seized drugs close to the time of the offense and over a yea r later when they were reweighed at his request. The district court found McGrad ywas responsible for 37.22 grams of crack, after discountin g evidence to link him to 9.61 other grams. The crack the court attributed to him weighed 37.22 grams at the initial weighing and 32.45 grams at the second weighing. McG rady says he should only be held accountable for the lower weight which would have put him at a base offense level of 28. 2
McGrady challenged the weight of the drugs at the sentencing hearing and the method by which the crack was first weighed, and the district cour t indicated to the prosecutor that it was the government's obligation t o prove the drug weight. (Tr. at 11). During the testimony that followed, the chief forensic chemist at the regional crime laboratory in Kansas City test ified that the drugs had been weighed by a standard method, tha t solvents and moisture typically evaporate crack over time, and that it was lik elythat the weight would have been significantly different when th e drugs were weighed again a year later. He said the decrease in weight tha t had occurred was not unusual, and that he assumed evaporation accounted fo r the difference. (Tr. at 32, 19). He also testified that the larger the piec e of crack, the more evaporation would occur. After hearing th e eviden ce, the district court made findings that credited the exper t testi mony, found evaporation had caused the weight discrepancy, an d attributed 37.22 grams of crack to McGrady. The se findings were supported by the evidence and are not clearly erroneous.
McGrady also argues that he was a minor or minimal participant in the offense and the distr ict court erred in not granting him either a four or two point reduction in his guideline calculation. McGrady contends that he was merely a courier who played a small

### 3

role in the drug deals. The district court found that McGrady wa s essential to the commission of the crimes and that they would not hav e occurred without his participation. The evidenc e supports these findings. McGradyplayed a significant role in carrying out the drug transactions. The dis trict court did not err in denying him a minor or minimal statu s reduction. See United States v. Ellis , 890 F.2d 1040 (8th Cir. 1989).
The judgment of the district court is affirmed.

A true copy.

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