UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4878

WILLADEUR ALPHONSE, a/k/a Kiki,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4892

JOSEPH HUGHEY, JR.,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Richard C. Erwin, Senior District Judge.

(CR-96-108)

Submitted: October 7, 1997

Decided: October 31, 1997

Before HALL and HAMILTON, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

D. Erik Albright, SMITH, HELMS, MULLISS & MOORE, L.L.P.,

Greensboro, North Carolina; John Stuart Bruce, Acting Federal Public

Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellants. Walter C. Holton, Jr., United

States Attorney, Douglas Cannon, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Willadeur Alphonse and Joseph Hughey, Jr. ("Defendants"), each

pled guilty to conspiring to possess with intent to distribute crack

cocaine and cocaine hydrochloride in violation of 21 U.S.C.A.

§§ 841(b)(1)(A), 846 (West Supp. 1997).* The court sentenced

Alphonse to 160 months imprisonment to be followed by a five-year

supervised release term and sentenced Hughey to an 87-month prison

term and five years of supervised release. They appeal their sentences,

contending that the district court erred in sentencing them based on

crack cocaine instead of cocaine hydrochloride. Finding no error, we

affirm.

I.

Hughey told a confidential informant that he knew Alphonse and

could obtain drugs from him. The informant arranged for Alphonse

to deliver about ten ounces of crack cocaine to a buyer. Hughey and

_________________________________________________________________

*Alphonse and Hughey also were indicted for possession with intent

to distribute 288.2 grams of crack cocaine and 8 grams of cocaine hydrochloride, but the court dismissed this count on the government's motion.

 2
the informant met Alphonse at the airport, and they drove to a motel

to wait for the buyer to arrive. Before they arrived at the motel,

authorities conducted a felony vehicle stop, arrested Hughey and

Alphonse, and seized 288.2 grams of crack cocaine and eight grams

of cocaine hydrochloride. The district court accepted Alphonse and

Hughey's guilty pleas to conspiracy, finding that they were entered

knowingly and voluntarily and that a factual basis supported the

pleas.

At the sentencing hearing, Defendants objected to the probation

officer's calculation of their base offense levels based on crack

cocaine rather than cocaine hydrochloride. They contended that there

was no sodium bicarbonate present to bring the drugs within the definition of "crack" in U.S. Sentencing Guidelines Manual § 2D1.1(c),

note (D) (1995).

Testimony at the hearing from an agent with the Drug Enforcement

Administration ("DEA") disclosed that the drugs seized from Defendants were in two packages, that the larger package contained an offwhite rocky substance, and that based on his experience, he believed

the larger package contained crack cocaine. And an expert in forensic

chemistry testified that she conducted several tests that determined

the larger package contained cocaine base, commonly referred to as

crack. On cross-examination, the chemist stated that the drugs could

be crack cocaine even when sodium bicarbonate, baking powder,

ammonia, or lye--substances commonly used to cook powder

cocaine into crack--did not appear in the laboratory analysis. She

noted that none of those additional substances appeared in the tests

she ran but that she did not test specifically for their presence.

Based on the testimony presented at the sentencing hearing, the

district court found the evidence sufficient to sentence Defendants

based on crack cocaine. The court also noted that the indictment

charged Defendants with conspiring to possess with intent to distribute 288.2 grams of cocaine base ("crack"); that at the plea colloquy,

Defendants entered guilty pleas to that indictment; and that a factual

basis supported the pleas. This appeal followed.

II.

Defendants contend that the district court erred in calculating their

base offense levels because the government failed to prove that the

 3
drugs they conspired to distribute were crack cocaine, as opposed to

another form of cocaine base. See U.S.S.G. § 2D1.1(c), note (D) (specifically noting that "crack" is but one form of "cocaine base"). In

reviewing the district court's application of the sentencing guidelines,

we review factual determinations for clear error, while legal determinations are subject to de novo review. See United States v. Blake, 81

F.3d 498, 503 (4th Cir. 1996).

Although Defendants rely primarily on United States v. James, 78

F.3d 851 (3d Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3259

(U.S. Oct. 7, 1996) (No. 95-9224), and United States v. MunozRealpe, 21 F.3d 375 (11th Cir. 1994), their reliance is misplaced.

James involved an indictment that charged possession of "a detectable

amount of cocaine base" and an ambiguous plea colloquy. See 78

F.3d at 855-56. Furthermore, the issue was hotly litigated at sentencing, and the district court eschewed any specific factual findings,

holding only that "cocaine base means crack for purposes of the

guidelines." Id. at 856-57. Faced with the ambiguities in the record

and the lack of factual findings by the district court, the Third Circuit

found that the government had failed to prove that the substance at

issue was crack cocaine. The court then remanded for resentencing.

Id. at 858.

In Munoz-Realpe, the defendant pled guilty to importation of "cocaine." He argued at sentencing that the drug at issue in his case, "cocaine base in liquid form," should be treated as cocaine powder for

sentencing purposes. The Eleventh Circuit affirmed the district

court's factual finding that the substance was not crack cocaine. See

21 F.3d at 376-77 (noting that cocaine base in liquid form requires

further processing and can just as easily be made into powder cocaine

as crack cocaine).

Unlike James and Munoz-Realpe, however, the evidence in this

case is unambiguous--the record discloses no indication that the

cocaine attributed to Alphonse and Hughey was any form of cocaine

base other than crack. See United States v. Hall, 109 F.3d 1227, 1235-

36 (7th Cir. 1997). The DEA agent testified that the larger package

of drugs contained an off-white rocky substance that, based on his

experience, he believed was crack cocaine. Moreover, a forensic

chemist testified that the drugs were crack cocaine and that the

 4
absence of sodium bicarbonate did not conclusively determine

whether or not the drugs were crack cocaine. Finally, Defendants

offered no proof that the drugs were any other form of cocaine base.

We therefore find that the district court's factual finding that the

cocaine was crack cocaine for purposes of the sentencing guidelines

was not clearly erroneous and that the court properly sentenced

Defendants based on crack cocaine.

Accordingly, we affirm. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

 5