Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-2432

UNITED STATES OF AMERICA,

Appellee,

v.

RAHEEM JONES,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Torruella, Lynch, and Howard, Circuit Judges.

Stephen J. Weymouth, on brief for defendant, appellant.

Paul G. Casey, Assistant United States Attorney, and Michael

J. Sullivan, United States Attorney, on brief for appellee.

September 19, 2006
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Per Curiam. Raheem Jones, who pled guilty to five counts

of distributing cocaine base, in violation of 21 U.S.C. §

841(a)(1), challenges his within-guideline sentence on several

grounds. His primary set of objections focuses on the district

court's finding that the substance involved was "crack" cocaine as

opposed to some other form of cocaine base. In addition, he argues

that the resulting 108-month sentence was unreasonable because the

sentencing court relied too heavily on the advisory guidelines and

failed to apply the factors set forth in 18 U.S.C. § 3553(a),

particularly the "parsimony" principle, to his individual

circumstances. After careful review of the record, we conclude for

the reasons detailed below that the district court's factual

findings are amply supported by the record, that the court

adequately explained its reasons for imposing the sentence, and

that the resulting sentence is not unreasonably high under the

circumstances of this case viewed through the lens of the statutory

factors.

Jones's main argument is that the district court erred in

finding that the substance involved was crack cocaine as opposed to

some other form of cocaine base. This distinction matters because,

under the guidelines, a higher base offense level applies to crack

than to other forms of cocaine, including other forms of cocaine

base. See USSG § 2D1.1(c), n. D; United States v. Brown, 450 F.3d

76, 80 (1st Cir. 2006). Specifically, in this case, the crack
We include the defendant's given name to distinguish this 1

case from United States v. Paul Anderson, 452 F.3d 87 (1st Cir.

2006), cited below, which appears in the same volume of F.3d.

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finding resulted in a guideline sentencing range of 108 to 135

months rather than the range of 18 to 24 months that would apply if

the substance were some other form of cocaine base.

"When the nature of an illicit substance is material at

sentencing, the government has the burden to prove the substance's

identity by a preponderance of the evidence." United States v.

Dwayne Anderson, 452 F.3d 66, 83-84 (1st Cir. 2006). That burden 1

remains unchanged after United States v. Booker, 543 U.S. 220

(2005)." Paul Anderson, 452 F.3d at 92 n.3. Jones's argument for

a burden of proof beyond a reasonable doubt is therefore "a nonstarter." Id. "'Whether a particular substance is crack or

cocaine for purposes of the sentencing guidelines is a question of

fact to be determined by the [sentencing] court,'" Dwayne Anderson,

452 F.3d at 83 (quoting United States v. Robinson, 144 F.3d 104,

109 (1st Cir. 1998)), whose fact-finding must be accepted unless it

is clearly erroneous, id.; see also United States v. Robinson, 433

F.3d 31, 38 (1st Cir. 2005) (concluding that standard of appellate

review of district court fact-finding is unchanged by Booker). 

Under those standards, the district court's finding that

the substance at issue here was crack readily survives appellate

review. The court based its finding on the affidavits (and

attached laboratory reports and transcripts of grand-jury testimony
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and of a tape-recording of one of the transactions) of three highly

experienced law enforcement officials, including a forensic chemist

and special agent of the Drug Enforcement Administration and a

local police officer who was a member of a joint federal/local drug

task force. Based on that uncontradicted evidence, the court

concluded that the substance involved in all five transactions was,

in fact, cocaine, based on its off-white and rocklike appearance,

the terminology used by the parties to the transactions, the price,

and the possible presence of sodium bicarbonate in at least two of

the samples. We have repeatedly found that quantum and quality of

evidence to be sufficient, particularly in the absence of any

evidence to the contrary. See, e.g., Dwayne Anderson, 452 F.3d at

84-85; Brown, 450 F.3d at 80-81; Robinson, 144 F.3d at 109. 

The fact that no evidence of sodium bicarbonate was found

in three of the samples is inconsequential. As explained by the

forensic chemist, "evidence of sodium bicarbonate is often not

found in crack cocaine because it dissipates through the

manufacturing process." Nor are we bothered by the absence of any

evidence as to the price and physical appearance of other forms of

cocaine base. As we previously recognized, "crack is . . .

uniquely identified by its 'rock-like' texture and yellowish or

off-white color." Dwayne Anderson, 452 F.3d at 80-81 (emphasis

added). Where, as here, adequate proof is presented that a

substance is crack cocaine, we have never required the government
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to rule out other forms of cocaine base. Accordingly, we discern

no clear error in the district court's determination that the

substance at issue in this case was crack.

Based on that determination, the district court correctly

calculated Jones's guideline sentencing range to be 108 to 135

months and--after expressly considering each of the mitigating

factors proffered by Jones--adopted the government's recommendation

to sentence him at the low end of that range rather than depart

downward under the guidelines or impose a non-guidelines sentence

under Booker. Specifically, the court found no evidence that

Jones's diminished mental capacity (mild mental retardation and

polysubstance disorder) contributed substantially to his commission

of the instant offenses and found his criminal history category to

adequately reflect the seriousness of his criminal record,

particularly given the temporal proximity of the instant offense to

his most recent prior offense and incarceration. The court also

commented that drug offenses are not victimless crimes, noting that

Jones's own mother died of a drug overdose, leaving him parentless

in his infancy. The only factor that gave the court pause was

Jones's poor upbringing, which the court characterized as "about as

bad as one could possibly imagine." However, after "wrest[ling]"

with that issue but finding "very little to be positive about on a

going forward basis," the court decided "to follow the guidance of

the Sentencing Guidelines and accept [the government's]
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recommendation to sentence on the low end [of the guidelines

range]." The court addressed Jones's need for rehabilitation,

resulting, in part, from his abusive and neglectful upbringing, by

recommending that he be placed in a facility with an educational

program "that can help him obtain the education and training that

he did not receive as a child." The court advised the defendant to

continue his education while in prison "so that when [he] come[s]

out, . . . [he] will be in a happier position then [he was] when

[he] went in."

Jones faults the district court for relying too heavily

on the guidelines, but the role played by the guidelines was not

impermissible here. See United States v. Jiménez-Beltre, 440 F.3d

514, 518 (1st Cir. 2006) (en banc). Having considered each of the

mitigating factors Jones brought to the court's attention and

having explained its reasons for the chosen sentence, the court was

not further required to explain why a lighter sentence would not be

"sufficient" under the prefatory language of 18 U.S.C. § 3553(a).

United States v. Navedo-Concepción, 450 F.3d 54, 58-59 (1st Cir.

2006).

Accordingly, the sentence is affirmed. See 1st Cir. R.

27(c).