In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3891

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN WILBORN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CR 951-1—Matthew F. Kennelly, Judge.

ARGUED JUNE 3, 2009—DECIDED AUGUST 10, 2009

Before EASTERBROOK, Chief Judge, and ROVNER and

SYKES, Circuit Judges.

ROVNER, Circuit Judge. Steven Wilborn pled guilty

to three counts of possession of a firearm by a felon, in

violation of 18 U.S.C. §922(g)(1), and four counts of distributing a controlled substance, in violation of 21 U.S.C.

§ 841(a)(1). After a sentencing hearing, the district court

determined that the substance Wilborn distributed was

crack cocaine, as opposed to some other form of cocaine

base. Wilborn disputes that finding, and we affirm.
2 No. 08-3891

Wilborn raises no issues on appeal with respect to the 1

firearms-related convictions.

I.

On four occasions in 2006, Wilborn sold cocaine to a

confidential informant. Each time, law enforcement

1

agents equipped the confidential informant with audio

and video recording devices and followed the informant

to Wilborn’s home. On August 30, Wilborn sold 26.2 grams

of cocaine to the informant. On August 31, he sold

26.6 grams, and referred to the substance as “glass,” a term

relating to the quality or purity of the drug being sold.

He told the informant he and his cousin had cooked it

themselves. On September 13, Wilborn sold to the informant 26.8 grams of cocaine and a .380 caliber pistol. On

November 1, Wilborn sold 69.8 grams of cocaine to the

informant, referring again to the substance as “glass.” After

the November 1 transaction, law enforcement agents

arrested Wilborn, searched his home, and found additional cocaine, packaged in eight small Ziploc-style plastic

bags.

Wilborn does not dispute that the substance at issue

is some form of cocaine base, claiming only that it is not

crack cocaine. Crack dealers are subject to substantially

harsher sentences than sellers of powder cocaine. See 21

U.S.C. § 841(b)(1)(A)(iii); U.S.S.G. § 2D1.1(c); United States

v. Stephenson, 557 F.3d 449, 452 (7th Cir. 2009) (noting that,

although recent congressional and judicial actions have

lowered some of the sentences for dealing crack cocaine,

crack sentences still are significantly higher than those for
No. 08-3891 3

other forms of cocaine); United States v. Edwards, 397

F.3d 570, 571 (7th Cir. 2005) (noting the ten-year statutory

minimum sentence triggered by distributing five or

more kilograms of powder cocaine, or fifty or more

grams of crack cocaine, and citing guidelines provisions

that apply harsher terms to crack than to powder cocaine). The sole issue on appeal is whether the district

court clearly erred in determining that the controlled

substance at issue was crack cocaine.

At the sentencing hearing, the government presented

two expert witnesses to testify to the nature of the substances seized in the controlled buys and from the subsequent search of Wilborn’s home. Government Exhibits 9,

10, 11, and 21 corresponded to the substances sold to

the confidential informant on August 30, August 31,

September 13, and November 1, respectively. Exhibit 17

consisted of the substance found in the search of

Wilborn’s home following his November 1 arrest.

Fredericka Laux, a senior forensic chemist for the Drug

Enforcement Administration, testified that she performed several tests on the substances and determined

that each contained cocaine base in varying degrees of

purity. Exhibits 9, 10, 11 and 21 ranged in purity from

36% to 45%, meaning that between 36% and 45% of the

total weight of the sample was cocaine base, and

the remainder of each sample was comprised of other

materials. Exhibit 17, the one found in the search of
4 No. 08-3891

Laux testified that there was no typical level of purity that she 2

found in cocaine samples she had tested in her career. Rather

purity varied widely, and she had personally seen samples

as low as 3% pure and as high as 91% pure cocaine base.

Wilborn’s home, was 74.2% pure cocaine base. The 2

materials tested also contained sodium bicarbonate, a

material commonly used in manufacturing crack cocaine,

and cutting agents, among other things. Laux explained

that she preserved a small sample of each exhibit prior

to testing because the testing process requires her to

grind the material in order to homogenize it. The grinding

process changes the appearance of the substance. All of

the substances tested appeared rock-like prior to testing,

in varying shades of white and brown. During Laux’s

testimony, the district court judge viewed the samples in

both their original forms and in the forms in which

they appeared after grinding. Some of the samples contained moisture that was not initially visible but became

apparent when the sample turned mushy after grinding.

Christopher Labno, a Special Agent of the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”),

testified that, based on his extensive experience as an

ATF agent, the substances seized from Wilborn were

crack cocaine, as opposed to some other form of cocaine

base. According to Agent Labno, “[c]rack cocaine is

a street slang term for the smokable form of cocaine

base.” R. 86, at 55. He described the typical color of crack

as a range of shades from off-white to a dark yellowishbrown, and the consistency as rock-like. He also testified
No. 08-3891 5

that, in his extensive experience with narcotics, he had

seen many variations in both color and consistency,

including crack that was still mushy or moist because

it had not fully dried following the cooking process. Agent

Labno explained that it is possible to smoke crack cocaine

that is still moist. According to Labno, all of the cocaine

recovered from Wilborn was consistent with the appearance of crack cocaine, it was packaged as crack would be

packaged, and it was priced at market rates for crack

cocaine. Moreover, Agent Labno had taken a statement

from Wilborn after his arrest, during which Wilborn

himself identified the substances as crack cocaine.

After hearing this testimony, personally examining

the samples, and hearing the argument of counsel, the

court ruled that all of the substances seized from

Wilborn were crack cocaine. The court correctly noted

the factors to consider in evaluating cocaine base, including color, texture, appearance, pricing, packaging,

and the labels that buyers and sellers apply to it. The

court found that the original samples were hard, rocky

substances that ranged in color from white to off-white.

After the grinding process, some of the samples had the

appearance of wet sand or chocolate chip cookie dough.

R. 86, at 79. The court found that all of the cocaine base

was priced as crack cocaine, that Wilborn thought he

was selling crack, and that his buyers believed they were

buying crack. Moreover, unrebutted testimony demonstrated that even moist crack cocaine could still be

smoked. R. 86, at 78-79. The court concluded that the

government had proved by a preponderance of the evidence that the substances at issue were crack cocaine. The
6 No. 08-3891

Wilborn also received 120 month sentences on each of the 3

firearms counts, also to run concurrently to each other and to

the sentences for the drug counts.

court sentenced Wilborn to the low end of the guidelines

range, 121 months’ imprisonment on each of the drug

counts, with the sentences to run concurrently. Wilborn 3

appeals.

II.

On appeal, Wilborn concedes that the cocaine base

found in his home, which was labeled Exhibit 17 during

the sentencing hearing, was adequately shown to

be crack cocaine because it had the color, appearance,

composition, consistency and purity of crack cocaine that

Congress and the Sentencing Commission intended to

target. He contends that the evidence was insufficient to

prove by a preponderance that the other substances at

issue were crack cocaine. The district court’s determination that the cocaine base exhibits were crack is a

factual finding that we review for clear error. Stephenson,

557 F.3d at 452. Wilborn’s main complaint is that the

cocaine base he sold was not rock-like, and varied in

color beyond what was typically expected for crack.

Rather, the samples were described as being the consistency of mashed potatoes, wet sand, and chocolate

chip cookie dough at various parts of the hearing. The

color ranged from the typical off-white to a dark yellowish

brown. Moreover, Wilborn complains, there was no

evidence that the confidential informant believed he

was buying crack cocaine. Nor was there any testimony
No. 08-3891 7

that the cocaine was packaged in the manner crack is

usually packed for sale, in the corners of plastic bags or

in small plastic bags. Finally, he argues that the purity of

all of the samples, except for Exhibit 17, was too low for

the substance to be considered crack. All in all, he contends the evidence was insufficient to find by a preponderance that the substance was crack.

Rather than applying a rigid definition to the meaning

of crack, which is admittedly not a scientific term, we

have held that a sentencing judge must determine

whether a substance is crack as those who buy and sell in

the market would understand that term. Stephenson, 557

F.3d at 453. See also Edwards, 397 F.3d at 574 (noting that

cocaine and cocaine base are chemically identical, and

defining crack as “the street name for a form of cocaine

base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in

a lumpy, rock-like form.”); U.S.S.G. § 2D1.1, Note D. We

consider a variety of factors in determining whether a

particular sample of cocaine base is crack including the

color, consistency, packaging, pricing, the manner in

which the parties to the transaction refer to the substance, and whether the parties to the transaction

recognize the substance as crack. Stephenson, 557 F.3d at

453 (identifying price, appearance, packaging, manner

of transaction, and the understanding of the parties to

the transaction as relevant factors in determining

whether a particular substance is crack); United States v.

Kelly, 519 F.3d 355, 363-64 (7th Cir. 2008) (listing form,

color, packaging, and the words used by the buyer and

seller as relevant to the calculus of whether a substance
8 No. 08-3891

is crack); United States v. Morris, 498 F.3d 634, 644 (7th

Cir. 2007) (identifying color, consistency and packaging

as relevant factors, and noting that wet crack is not unusual).

The first problem with Wilborn’s argument is that it

disingenuously describes the consistency of the substances at issue as being similar to mashed potatoes, wet

sand, and chocolate chip cookie dough. Although some

of the samples had these unusual consistencies after

they had been ground up for testing, the district court

personally viewed samples that were preserved

before grinding and found that each sample had the

characteristic rock-like, off-white appearance that the

experts expected crack to have. Moreover, Laux testified

that the post-grinding consistency was caused by

pockets of water trapped inside the rocks of crack, probably due to insufficient drying time. R. 86, at 45-47. Agent

Labno explained that a certain level of wetness could

be expected because dealers often wait to cook powder

cocaine into crack until they have received an order, so

that they will not be caught possessing crack. Agent Labno

also remarked that water added weight to the crack,

which made the substance more profitable to dealers,

who typically sell crack by weight. R. 86, at 59.

Laux testified that the darker color of the substances

after grinding was due to the presence of other ingredients

in the mixture. She also testified that the purity of the

samples was not determinative because she had encountered cocaine base with wide-ranging levels of purity.

Agent Labno testified that the crack was packaged as
No. 08-3891 9

he would expect crack to be packaged. The larger quantities were packaged as he expected wholesale quantities

to be packaged, and the smaller quantities were packaged in the manner he expected user amounts to be

packaged. Perhaps most damning for Wilborn was his

own post-arrest statement to Agent Labno. In that statement, Wilborn himself repeatedly identified the substance that he sold to the confidential informant as

crack cocaine. In short, the district court did not clearly

err in accepting the testimony of two experts that

Exhibits 9, 10, 11 and 21 consisted of cocaine base that

was priced like crack, packaged like crack, and had the

color and consistency of crack. United States v. Branch,

195 F.3d 928, 934 (7th Cir. 1999) (in determining whether

a substance is crack cocaine, the district court alone

decides the issue based on the evidence received, considering the credibility, knowledge and experience of the

witnesses). Nor did the court clearly err in concluding

that, given those findings and given Wilborn’s own

admissions, Exhibits 9, 10, 11 and 21 were crack cocaine

as we have defined that term. To paraphrase James

Whitcomb Riley, if cocaine base looks like crack, is

priced like crack, is packaged like crack, and is sold as

crack, it is probably crack.

AFFIRMED.

8-10-09