                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 28, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-50369
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EUGENE BELL,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 7:05-CR-168-2
                       --------------------

Before JOLLY, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Eugene Bell appeals the judgment of conviction and sentence

for conspiracy to possess with intent to distribute more than 50

grams of crack cocaine in violation of 21 U.S.C. §§ 841(a),

(b)(1)(A), 846.   Finding no error, we affirm.

     Bell’s first argument is that there was insufficient

evidence to establish that any substance in excess of the 10.5

grams that was subjected to laboratory analysis was the crack

form of cocaine base.   According to Bell, scientific evidence

“has been required” to establish the identity of a controlled

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 06-50369
                                -2-

substance.   This argument is patently without merit.   It is

established that circumstantial evidence, supported by lay

testimony, may be sufficient to establish the identity of a

controlled substance, and we have expressly rejected the argument

that scientific evidence is required.     See United States v.

Brown, 887 F.2d 537, 541 (5th Cir. 1989); see also United States

v. Osgood, 794 F.2d 1087, 1095 (5th Cir. 1986).    The cases on

which Bell relies for the proposition that scientific evidence

“has been required” do not support that proposition; each case

simply held that expert testimony or scientific evidence was

sufficient to establish the identity of a substance.     See United

States v. Butler, 988 F.2d 537, 542-43 (5th Cir. 1993); United

States v. Lewis, 113 F.3d 487, 492 (3d Cir. 1997); United States

v. Johnson, 12 F.3d 760, 765-66 (8th Cir. 1993).

     There was ample circumstantial and lay evidence to show that

the substance involved was crack cocaine.    Lesia Samuels and

Jessie Brooks both testified that they purchased crack from Bell;

the price they paid was consistent with the going price of crack;

there was evidence that on at least one occasion, Bell prepared

crack consistent with testimony regarding how crack is prepared;

Samuels obtained 12 cookies, consistent with crack preparation;

and the 10.5 grams purchased by Samuels from Brooks was

determined by testing to be crack cocaine.    The jury was free to

infer from all the evidence that Bell was involved in the sale of

the crack form of cocaine base.   See Brown, 887 F.2d at 542.
                           No. 06-50369
                                -3-

     Bell’s argument that the district court erred in attributing

168 grams of crack to him at sentencing in the absent of

scientific testimony to establish the nature of the substance

likewise fails.   Bell did not raise this argument in the district

court, confining his objection to the drug quantity determination

rather than the identity of the substance.   Accordingly, we

review for plain error.   See United States v. Garcia-Mendez, 420

F.3d 454, 456 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398

(2006).   For the same reasons set forth with respect to the

evidence supporting the conviction, Bell’s argument fails.     No

scientific evidence was required, and there was ample evidence to

support a finding that the substance was crack.

     In his final point of error, Bell argues that the

application of the Sentencing Guidelines as advisory in light of

United States v. Booker, 543 U.S. 220 (2005), violates his Sixth

Amendment and Due Process rights and the Ex Post Facto Clause.

Bell blue brief, 17-21.   As Bell concedes, because he raises this

issue for the first time on appeal, review is for plain error.

Id. at 18; see United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005).

     Bell’s ex post facto and due process arguments are

foreclosed by our decision in United States v. Austin, 432 F.3d

598, 599-600 (5th Cir. 2005).   Further, as the district court

properly applied the Guidelines as advisory, there was no Sixth

Amendment violation.   See Booker, 543 U.S. at 245, 259-60.    Bell
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                               -4-

concedes that Austin forecloses his challenge to the retroactive

application of Booker but raises it to preserve it for possible

review by the Supreme Court.

     AFFIRMED.
