                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               AUG 24 1999
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 98-3111
 BERNARD J. COLLINS,                                   (D.C. No. 97-CR-20047)
                                                              (D. Kan.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**


       A jury convicted Defendant-Appellant Bernard J. Collins of possessing with intent

to distribute approximately 262 grams of cocaine base and 882 grams of cocaine powder

in violation of 21 U.S.C. § 841(a)(1) (Count I); attempting to distribute approximately

28.6 grams (one ounce) of cocaine base in violation of 21 U.S.C. § 846 (Count II);

and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)


       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
(Count III). The district court sentenced Defendant to 322 months imprisonment,

consisting of 262 months on the first two counts, to run concurrently, and 60 months on

the third count, to run consecutively. On appeal, Defendant argues that (1) the first two

counts of the indictment were multiplicitous; (2) the court improperly admitted Rule

404(b) evidence at trial; (3) the evidence was insufficient for sentencing purposes to

prove the presence of cocaine base; and (4) the cocaine base/cocaine powder sentencing

differential violates due process. Our jurisdiction arises under 28 U.S.C. § 1291 and 18

U.S.C. § 3742. We affirm.

       The historical facts are largely undisputed. A police informant set up a purchase

of one ounce of cocaine base from Defendant. Upon Defendant’s arrival at the

informant’s home, authorities arrested him. During Defendant’s apprehension, a police

officer observed Defendant drop a plastic bag containing an off-white rock substance.

The bag contained approximately one ounce of cocaine base. Officers also recovered a

gun, a pager, and over $70,000 in cash from Defendant. A search of Defendant’s vehicle

revealed an additional 262 grams of cocaine base and 882 grams of cocaine powder. The

indictment against Defendant followed.

       Defendant first argues that Counts I and II of the indictment were multiplicitous,

and thus he was subjected to multiple punishments arising from the same criminal

behavior in violation of the Double Jeopardy Clause. See U.S. Const. amend. V. We

review claims of multiplicity de novo. United States v. Segien, 114 F.3d 1014, 1022


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(10th Cir. 1997). Multiplicity refers to multiple counts of an indictment which cover the

same criminal behavior. The threat of multiple convictions and sentences for the same

offense raises double jeopardy concerns. United States v. Johnson, 130 F.3d 1420,

1424 (10th Cir. 1997).

       Defendant’s claim that the two instances of criminal conduct charged in Counts I

and II of the indictment constitute only one crime has little merit. Count I of the

indictment charged Defendant with possessing with an intent to distribute a large quantity

of cocaine base and cocaine powder which authorities located inside his vehicle following

his arrest, in violation of 21 U.S.C. § 841(a)(1). Count II charged Defendant with

attempting to distribute a smaller quantity of cocaine base which Defendant dropped from

his person upon his arrest, in violation of 21 U.S.C. § 846. The one ounce of cocaine

base which Defendant dropped was the type and amount Defendant had previously agreed

to distribute to the informant.

       The facts of this case clearly indicate that on the date of his arrest, Defendant

attempted to distribute one ounce of cocaine base to the informant. Defendant meanwhile

possessed the much larger quantity of cocaine base and cocaine powder located in his

vehicle for distribution at a later time. Thus, despite the temporal proximity of

Defendant’s criminal conduct, his attempt to immediately distribute one ounce of cocaine

base to the informant, and his possession with the intent to distribute the much larger

quantity of cocaine base and powder at a later time, constitute separate crimes


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chargeable under separate criminal statutes. Compare United States v. Palafox, 764 F.2d

558, 560 (9th Cir. 1985) (en banc) (where defendant distributed a sample of drugs and

retained the remainder for the purpose of making a further immediate distribution to the

same recipient at the same place and time, defendant could be punished for only one

criminal act). Accordingly, we reject Defendant’s argument that Counts I and II of the

indictment were multiplicitous.

       Defendant next argues that the district court erred when pursuant to Fed. R. Evid.

404(b), it allowed the government to introduce evidence of his 1989 conviction for

conspiracy to possess crack cocaine. We review admission of evidence under Rule

404(b) for an abuse of discretion. United States v. Lazcano-Villalobos, 175 F.3d 838,

846 (10th Cir. 1999). Four requirements must be met before evidence of other crimes is

admissible: (1) the evidence must be introduced for a proper purpose; (2) the evidence

must be relevant; (3) the unfair prejudice to defendant must not substantially outweigh the

evidence’s probative value; and (4) upon request, a limiting instruction must be tendered.

Huddleston v. United States, 485 U.S. 681, 691-92 (1988). Defendant challenges the

district court’s determination that evidence of his conviction was relevant and its

probative value was not substantially outweighed by its prejudicial impact.

       At trial, Defendant claimed he was a pawn in the informant’s operation and all the

cocaine in his vehicle belonged to the informant. The district court ruled that evidence of

Defendant’s prior conviction was relevant for the purpose of showing opportunity. See


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Fed R. Evid. 404(b) (evidence of other crimes may be admissible to show opportunity).

The district court reasoned that Defendant’s prior conviction proved he had other sources

from which he could obtain cocaine. The court concluded: “It isn’t an opportunity to

distribute that we’re talking about. We’re talking about the source issue.” Consistent

with Huddleston, the district court also applied Fed. R. Evid. 403 and ruled that the

potential prejudice to Defendant did not substantially outweigh the evidence’s probative

value. Finally, the court tendered an appropriate limiting instruction to the jury. Given its

careful application of Huddleston, we cannot say on the record before us that the district

court abused it’s discretion in allowing the Rule 404(b) evidence.

       Thirdly, Defendant argues that because the government failed to present evidence

regarding the presence of baking soda within the cocaine base, the evidence was

insufficient to establish that he possessed cocaine base as opposed to cocaine powder.

Thus, Defendant claims we should vacate his sentence on Counts I and II and remand for

application of the less harsh cocaine powder guideline. See U.S.S.G § 2D1.1(c) (equating

one gram of cocaine base to 100 grams of cocaine powder). At sentencing, the

government need only prove by a preponderance of the evidence that cocaine within a

defendant’s possession constitutes cocaine base. United States v. Brooks, 161 F.3d 1240,

1248 (10th Cir. 1998) (where the evidence at trial demonstrated by a preponderance of the

evidence that the substance was “street-form crack,” the district court properly calculated

defendant’s base offense level premised on the distribution of cocaine base). We review


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the district court’s factual finding that a challenged substance constitutes cocaine base

only for clear error. United States v. Bencomo-Castillo, 176 F.3d 1300, 1303 (10th Cir.

1999).

         In Brooks, 161 F.3d at 1247-49, we squarely rejected the proposition that before

the district court may properly find a substance constitutes cocaine base, the government

must present evidence that the substance contains sodium bicarbonate or baking soda.

Brooks controls here. In this case, the government presented the testimony of a DEA

chemist who conducted a series of tests on the cocaine. Based upon those tests, the

chemist concluded that the challenged substance was cocaine base. The district court

did not err in its finding that the evidence was sufficient to establish the substance as

cocaine base. See id. at 1247.

         Finally, Defendant argues that the cocaine base/cocaine powder sentencing

differential violates the due process guarantees of the Fifth Amendment. See U.S.

Const. amend. V; U.S.S.G. § 2D1.1(a). This argument has long been foreclosed by

circuit precedent. E.g., United States v. Turner, 928 F.2d 956, 959-60 (10th Cir. 1991)

(holding that different penalties for cocaine base and cocaine in other forms do not violate

due process). Absent en banc review, we are not empowered to alter that precedent. See

United States v. Nichols, 169 F.3d 1255, 1261 (10th Cir. 1999) (one




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panel cannot overrule the judgment of a prior panel of the court).

       AFFIRMED.

                                                 Entered for the Court,



                                                 Bobby R. Baldock
                                                 Circuit Judge




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