The Honorable D. Brook Bartlett, United States District 1

Judge for the Western District of Missouri.

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No. 96-1261

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United States of America, *

*

Plaintiff/Appellee *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri

John W. McGrady, also known as *

Walking John, *

*

Defendant/Appellant. *

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Submitted: September 13, 1996

 Filed: October 3, 1996

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Before FAGG, LAY, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

John W. McGrady pled guilty to two counts of distributing crack

cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district

court sentenced him to fifty-seven months imprisonment. On appeal,

1

McGrady contends that his sentence was improperly calculated. He claims

the district court erred by overstating the amount of crack with which he

was involved and by not treating him as a minor or minimal participant

under § 3B1.2 of the Sentencing Guidelines. We affirm.

McGrady disputes the amount of crack attributed to him. He claims

that the government did not establish that he was responsible for 35 or

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 year

later when they were reweighed at his request. The district court found

McGrady was responsible for 37.22 grams of crack, after discounting

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. McGrady 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 court

indicated to the prosecutor that it was the government's obligation to

prove the drug weight. (Tr. at 11). During the testimony that followed,

the chief forensic chemist at the regional crime laboratory in Kansas City

testified that the drugs had been weighed by a standard method, that

solvents and moisture typically evaporate crack over time, and that it was

likely that the weight would have been significantly different when the

drugs were weighed again a year later. He said the decrease in weight that

had occurred was not unusual, and that he assumed evaporation accounted for

the difference. (Tr. at 32, 19). He also testified that the larger the

piece of crack, the more evaporation would occur. After hearing the

evidence, the district court made findings that credited the expert

testimony, found evaporation had caused the weight discrepancy, and

attributed 37.22 grams of crack to McGrady. These 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 district 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 was

essential to the commission of the crimes and that they would not have

occurred without his participation. The evidence supports these findings.

McGrady played a significant role in carrying out the drug transactions.

The district court did not err in denying him a minor or minimal status

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.