* After examining the briefs and records, we have concluded that oral argument is

unnecessary. Thus these appeals are submitted on the briefs and records. FED. R. APP. P.

34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted July 24, 2008*

Decided September 24, 2008

Before

FRANK H. EASTERBROOK, Chief Judge

KENNETH F. RIPPLE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

Nos. 06‐3884 & 07‐4035

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JAIME ANDRADE and MARIBEL

MIRAMONTES,

Defendants‐Appellants.

Appeals from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 04 CR 522

David H. Coar,

Judge.

O R D E R

Jaime Andrade and Maribel Miramontes were convicted of drug crimes, see 21 U.S.C.

§§ 846, 841(a)(1), and both appeal their sentences. Ms. Miramontes argues that the government

did not prove that the cocaine she sold was crack, and both defendants contend that in light of

United States v. Kimbrough, 128 S. Ct. 128 (2007), they must be resentenced because the district

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance 

with Fed. R. App. P. 32.1
Nos. 06-3884 & 07-4035 Page 2

court did not appreciate its discretion to disagree with the higher penalty ranges the sentencing

guidelines provide for cocaine offenses involving crack rather than powder. The government

opposes Ms. Miramontes’ first argument but concedes error under Kimbrough. We vacate the

sentences in both cases and remand for resentencing.

A police informant asked Ms. Miramontes to procure drugs for him. The informant

asked for “two,” and Ms. Miramontes called her source, J.D., to ask if J.D. could “get two of ’em

right now.” R. 146 at 3. Together, Ms. Miramontes, her then-boyfriend Andrade, and the

informant drove to meet J.D. After a short wait, J.D. approached their car and confirmed the

price of $500 per ounce before returning with two bags containing a light-colored rock-like

substance. Mr. Andrade asked the informant, “Does it look good to you?” R.99 at 95. The

informant replied, “It’s not that dark.” Id. That comment prompted Ms. Miramontes and Mr.

Andrade to defend the product. In the course of this exchange, Ms. Miramontes said, “I ain’t no

fucking crack head, I fucking deal.” Id. at 96. The informant soon saw a police car and let Ms.

Miramontes and Mr. Andrade out of his car.

Ms. Miramontes and Mr. Andrade were then indicted for conspiring to distribute and for

distributing cocaine, but their cases diverged. Mr. Andrade pleaded guilty to the distribution

count while declining to admit that the cocaine delivered to the informant was crack. At Mr.

Andrade’s sentencing in September 2006, the informant testified that he had requested crack and

that the substance he received looked “[l]ike crack,” meaning it was “a little bit darker than

regular cocaine and hard.” Id. at 11. A police officer testified that after the transaction he

examined the product and, based on “the texture of the substance at the time and the coloring and

the packaging,” he recognized it to be crack. Id. at 34. And a chemist opined that the substance

purchased by the informant was crack. The chemist noted that the parties had stipulated that the

substance was cocaine base, and he pointed to “its visual appearance” and to the fact that

“virtually all” cocaine base sold on the streets is crack. Id. at 53. He acknowledged that sodium

bicarbonate (baking soda) and sodium carbonate are among several substances that can be used

to strip the hydrochloride from powder cocaine in creating crack, but he explained that those

substances are mostly consumed or drained away in the “cooking” process and thus are not

always detectible in the end product. The substance the defendants sold to the informant did not

contain bicarbonate, but even the toxicologist Mr. Andrade called as a witness conceded that

crack does not have to contain bicarbonate. 

The district court found that the substance was crack and used that drug in calculating a

guidelines imprisonment range of 140 to 175 months. Mr. Andrade then argued that the court, in

applying the sentencing factors under 18 U.S.C. § 3553(a), should take into account the

sentencing differential under the guidelines for offenses involving like amounts of crack and

powder cocaine. The court, however, imposed a prison sentence of 157 months without

commenting on that contention.

Meanwhile, Ms. Miramontes was a fugitive. After her arrest she had given a statement

acknowledging that the cocaine involved in the transaction was “hard,” but she then skipped her

scheduled change-of-plea hearing and absconded. When she was caught more than a year later,
Nos. 06-3884 & 07-4035 Page 3

she pleaded guilty to both counts of the indictment, but, like Mr. Andrade, declined to admit that

the offense involved crack. Building on Mr. Andrade’s sentencing hearing, Ms. Miramontes

asserted that the absence of bicarbonate proved that the cocaine was not crack. The district court

rejected her contention, and though characterizing the question as “close,” once again found that

the substance was crack. The court looked not only to the evidence at Mr. Andrade’s sentencing

but also to the additional testimony introduced by Ms. Miramontes. She called a consultant in

toxicology and pharmacology, who opined that crack must be made with sodium bicarbonate to

create the “classic crack” or “snap, crackle and pop” the drug produces when burned. Not only

was this testimony inconsistent with the expert testimony introduced at Mr. Andrade’s

sentencing, but the consultant conceded that he was unfamiliar with the methodology the

government had used to test the substance. The government, on the other hand, called a forensic

chemist familiar with the testing methodology used. She testified that the prevalence of inositol

(a cutting agent) in the substance might have made a low level of sodium bicarbonate

undetectable. 

The district court took the evidence under advisement and did not sentence Ms.

Miramontes until November 28, 2007, after the revisions to the offense levels for crack in

U.S.S.G. § 2D1.1 had taken effect. The court concluded that the substance was crack and that

Ms. Miramontes had obstructed justice by absconding, resulting in a total offense level of 32. 

That figure, combined with Ms. Miramontes’ criminal history category of II, yielded a guidelines

imprisonment range of 135 to 168 months. The court imposed a term of 135 months but said it

would have imposed a lower sentence if it were allowed to consider the sentence disparity

between crack and powder cocaine.

On appeal, Ms. Miramontes first argues that the government did not prove by a

preponderance of the evidence that she distributed crack rather than another form of cocaine

base. The parties in this case stipulated that Ms. Miramontes sold cocaine base, but we have

held that “not all cocaine base is crack.” See United States v. Edwards, 397 F.3d 570, 571 (7th

Cir. 2005). Different (and harsher) sentencing ranges apply under the sentencing guidelines to a

defendant convicted of selling crack, as opposed to powder cocaine, and therefore the

government must prove by a preponderance at sentencing that the cocaine base was crack. 

United States v. Padilla, 520 F.3d 766, 769 (7th Cir. 2008). We review the district court’s

finding on drug type for clear error. Id.

Ms. Miramontes mainly argues that the cocaine base in this case was not shown to be

crack because it did not test positive for sodium bicarbonate. That contention ignores the expert

testimony that bicarbonate need not be found in the end product and, in any event, is foreclosed

by precedent. See Padilla, 520 F.3d at 770; United States v. Lake, 500 F.3d 629, 634 (7th Cir.

2007). 

Otherwise, this case is unremarkable. We have held that drug type may be proved

through “testimony from people familiar with the drug, . . . including veteran police officers and

forensic chemists,” or “an informant’s belief that he was purchasing crack.” Padilla, 520 F.3d at

771; see Lake, 500 F.3d at 634; United States v. Buchanan, 362 F.3d 411, 413 (7th Cir. 2004). 
Nos. 06-3884 & 07-4035 Page 4

The government here introduced evidence in each category. The informant testified that he

believed he was buying crack and that the product and the parties’ conversation during the

transaction were consistent with that understanding. Moreover, the police officer who received

the cocaine base from the informant identified it as crack, as did a forensic chemist. The chemist

also confirmed that forms of cocaine base other than crack are rarely seen in the United States,

meaning it is highly unlikely that the cocaine base in this case was not crack. See United States

v. Kelly, 519 F.3d 355, 364 (7th Cir. 2008). Accordingly, the district court’s finding that Ms.

Miramontes’ crime involved crack is not clearly erroneous. See Padilla, 520 F.3d at 770-71;

United States v. Morris, 498 F.3d 634, 644 (7th Cir. 2007) (holding that district court did not err

in finding that drug was crack where DEA agent testified that substance was cocaine base and

two law enforcement officers testified that appearance and packaging were consistent with

crack); United States v. Linton, 235 F.3d 328, 329-30 (7th Cir. 2000) (upholding district court’s

finding that substance was crack where forensic chemist testified that substance was cocaine

base and both chemist and veteran narcotics agent identified the substance as crack based upon

its visual appearance and packaging). 

Ms. Miramontes and Mr. Andrade next argue that they are entitled to a remand for

resentencing under Kimbrough. The government concedes this point. Both defendants

challenged the differential in the sentencing ranges for offenses involving equal amounts of

crack and powder cocaine, see United States v. Bush, 523 F.3d 727, 729-30 (7th Cir. 2008), so

they preserved the Kimbrough claim. Both defendants were sentenced before Kimbrough, when

this court’s precedent foreclosed imposing a sentence below the guidelines range merely because

the district court disagreed with the crack-to-powder ratio in the guidelines. See Bush, 523 F.3d

at 730. Because the judge was not constrained to apply the guidelines ratio to Ms. Miramontes

or Mr. Andrade, their sentences must be vacated. 

Because Ms. Miramontes originally was sentenced after the amended guidelines for

cocaine became effective, the district court should employ those guidelines in calculating Ms.

Miramontes’ sentence on remand. After the sentence is calculated using the amended

guidelines, the district court may then consider whether any further reduction, in light of

Kimbrough, is warranted.

A somewhat different approach is called for with respect to Mr. Andrade. Mr. Andrade

was sentenced prior to the adoption of the guideline amendments for crack cocaine. In United

States v. Taylor, 520 F.3d 746 (7th Cir. 2008), we set forth the proper procedure for district

courts to follow with respect to limited Kimbrough remands that had been “complicat[ed]” by

the adoption of the amended guidelines. We stated:

The district judge should hold off on telling us whether she is minded to resentence the

defendant under Kimbrough until she decides whether to act favorably on the defendant’s

motion (if he makes one, or on the judge’s own initiative, if the defendant does not) for

relief under the Commission’s new crack regime. If she decides to impose the same

sentence under the new guideline, or if though she lowers the sentence the defendant

believes that 18 U.S.C. § 3553(a) would warrant a still-lower sentence, or if he does not
Nos. 06-3884 & 07-4035 Page 5

make a proper motion for relief under the new guideline and she is not minded to grant

such relief on her own initiative, she will then have to advise us whether she would be

inclined to reduce his sentence under the dispensation granted sentencing judges by

Kimbrough. To avoid delay, the judge should impose a deadline on the filing of a motion

to resentence; we suggest 21 days after the date of this decision.

Id. at 748. Here, however, a somewhat simplified procedure can be followed because, while

Taylor involved plain error review, here Mr. Andrade preserved his objection to the powder to

crack ratio. Remand, therefore, is warranted. See United States v. Padilla, 520 F.3d 766, 775

(7th Cir. 2008). Similar to the procedure set forth in Taylor, the district court must decide

whether, in response to a motion by the defendant or on the court’s own motion, relief under the

new guidelines is appropriate. Regardless of the district court’s action with respect to the

motion--whether it determines that no relief under the Guidelines should be granted or it decides

to impose a new sentence under the amended guideline--the defendant’s sentence still must be

evaluated in light of Kimbrough.

Accordingly, we VACATE the judgments of the district court and REMAND for

resentencing.