UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 97-4949

WAYNE ALLEN RITTER, a/k/a Pop,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-97-367)

Submitted: June 30, 1998

Decided: August 7, 1998

Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Nathaniel Roberson, NATHANIEL ROBERSON, ESQUIRE, Colum-
bia, South Carolina, for Appellant. J. Rene Josey, United States Attor-
ney, Jane B. Taylor, Assistant United States Attorney, Christopher W.
Seybolt, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Wayne Allen Ritter pled guilty to conspiracy to possess cocaine
base ("crack") with intent to distribute, 21 U.S.C. § 846 (1994), and
received a sentence of ten years imprisonment. He appeals his sen-
tence, contending that the district court clearly erred in finding that
he was responsible for more than 50 grams of crack, thus exposing
him to the ten-year statutory minimum sentence, see, 21 U.S.C.A.
§ 841(b)(1)(A)(iii) (West 1981 & Supp. 1998), and clearly erred in
finding that he did not have a mitigating role in the offense, see USSG
§ 3B1.2.* We affirm.

In August 1995, authorities in Columbia, South Carolina, began
investigating a crack distribution ring. Four individuals were eventu-
ally identified as conspirators, including Wayne Ritter. In November
1996, Richard Walker promised Ritter $50 to deliver a package of
crack. Ritter delivered four cookies of crack to an undercover agent
and a confidential informant. After his arrest and guilty plea, Ritter
maintained that he was a crack addict and had been involved in only
one other drug sale with another conspirator.

When the crack was seized, it was still wet and weighed 57 grams.
When it was later analyzed, it weighed 50.16 grams but was described
in the lab report as cocaine because there had been an incomplete con-
version to cocaine base. Ritter argued at sentencing that only 88% of
the substance seized should be treated as crack under the formula
approved in United States v. Paz, 927 F.2d 176, 180 (4th Cir. 1991);
see also United States v. Ricco, 52 F.3d 58, 63 (4th Cir. 1995). In Paz,
the substance seized was cocaine powder which the defendants
intended to cook into crack. Application of the Paz formula to 50.16
grams would have brought the amount of crack below 50 grams and
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*U.S. Sentencing Guidelines Manual (1997).

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subjected Ritter to a five-year mandatory minimum rather than a ten-
year mandatory minimum. However, the district court determined that
the substance was crack, though "slightly undercooked," and that
Ritter had delivered more than 50 grams of crack because a complete
chemical conversion would not have reduced the weight below 50
grams.

When the amount of drugs for which a defendant is responsible is
in dispute, the government must prove the amount by a preponder-
ance of the evidence. See United States v. Gilliam, 987 F.2d 1009,
1013 (4th Cir. 1993). For sentencing guideline purposes, "crack"
means a form of cocaine base which usually appears in a lumpy, rock-
like form. See USSG § 2D1.1(c), Note (D). Here, cocaine powder had
been cooked enough to achieve the hard, rocklike form. There was no
dispute that the conspirators intended to distribute crack, not powder
cocaine. In fact, Ritter stated at sentencing that he hoped to get some
crack from Walker. Because Ritter and Walker conspired to,
attempted to, and intended to distribute more than 50 grams of crack
to the agent and the informant, Ritter's sentence was properly deter-
mined under the crack guideline. See USSG§ 2D1.1, comment.
(n.12) (drugs the defendant attempts to sell are properly considered
in determining the sentence). See also 21 U.S.C. § 846 (attempt or
conspiracy is subject to same penalty as offense which is object of
attempt or conspiracy).

Ritter argued at sentencing that he was merely a crack addict who
was a minor participant in the conspiracy. The court rejected Ritter's
claim, holding that his role need not be considered because Ritter was
being held responsible only for the crack he delivered to the agent,
rather than all reasonably foreseeable amounts distributed by his co-
conspirators. As Ritter argues on appeal, this approach is contrary to
that prescribed in the sentencing guidelines. Both USSG § 1B1.3(a)
and the introductory commentary to Chapter Three, Part B (Role in
the Offense) provide that a defendant's role is to be determined on the
basis of all relevant conduct. However, the error is harmless because
a downward role adjustment would not have benefitted Ritter. His
guideline range was 120-135 months. Even without the adjustment,
he received the lowest sentence possible, given that he was subject to
the ten-year statutory minimum sentence.

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Accordingly, we affirm the sentence imposed. 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

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