UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 99-4146
WILLIAM CORREY TALLEY, a/k/a Rat
Rat,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Terrence W. Boyle, Chief District Judge.
(CR-94-65-BO)

Submitted: November 9, 1999

Decided: November 22, 1999

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Michael G. Howell, MCNEIL & GILBERT, Raleigh, North Carolina,
for Appellant. Janice McKenzie Cole, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, John Howarth Bennett,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

William Correy Talley appeals from his conviction and sentence
for conspiracy to distribute and to possess with intent to distribute
cocaine base (crack). We affirm Talley's conviction. However, we
vacate his sentence and remand for further fact-finding consistent
with this opinion.

I.

Dealing first with Talley's contention that the Government improp-
erly used three of its four peremptory challenges consecutively to
excuse black jurors, we find that the district court did not clearly err
in determining that Talley's objection was untimely. A Batson chal-
lenge must be raised no later than before the dismissal of the jury
venire. See Morning v. Zapata Protein, 128 F.3d 213, 216 (4th Cir.
1997). Here, it is unclear when the venire was dismissed, although the
district court stated at the time of defense counsel's motion that the
jury was "being impaneled." However, while the court in Morning
held that a Batson challenge raised after the venire had been excused
was untimely, the court did not conclude that any challenge raised
before the venire was excused was necessarily timely. In fact, the
court cited approvingly United States v. Joe, 928 F.2d 99, 103 (4th
Cir. 1991), which urged that a Batson objection be raised and evalu-
ated as early as possible.

The district court's factual determination that the objection could
have been raised at an earlier time is reviewed for clear error. See
Jones v. Plaster, 57 F.3d 417, 425 (4th Cir. 1995). We find that the
district court did not clearly err in determining that the objection was
untimely. Because we determine that Talley waived his objection, we
do not reach the issue of whether he has established a prima facie case
under Batson v. Kentucky, 476 U.S. 79 (1986).

                     2
II.

We need not dwell long on Talley's next complaint: that the district
court erred in denying his motion to suppress the testimony of several
witnesses under 18 U.S.C. § 201(c) (1994). We have already held that
the Government does not violate § 201(c) by granting immunity or
leniency or entering into plea agreements to obtain testimony. See
United States v. Richardson, ___ F.3d ___, 1999 WL 686892 (4th Cir.
1999).

III.

Talley next argues that, because neither crack nor cocaine base
appears on the lists of scheduled controlled substances, the district
court should have granted his motion for judgment of acquittal. Talley
was convicted of conspiring to violate 21 U.S.C.§ 841(a)(1) (1994).
Section 841(a)(1) makes it unlawful for any person to "distribute, or
. . . possess with intent to . . . distribute, . . . a controlled substance."
21 U.S.C. § 802(6) (1994) defines "controlled substance" as "a drug
or other substance, or immediate precursor, included in schedule I, II,
III, IV, or V of part B of this subchapter." Although Schedule II lists
"[c]oca leaves . . . cocaine, its salts, optical and geometric isomers,
and salts of isomers; ecgonine, its derivatives, their salts, isomers, and
salts of isomers; or any compound, mixture, or preparation, which
contains any quantity of any of the substances referred to in this para-
graph," neither "cocaine base" nor "crack" is specifically enumerated
as a controlled substance. See 21 U.S.C.§ 812(c) (1994). Talley was
charged with a conspiracy involving "cocaine base (crack)."

We find that Talley's claim is meritless. "Cocaine base" clearly
falls within the definition of "cocaine, its derivatives, or any com-
pound or mixture which contains cocaine." See United States v.
Deisch, 20 F.3d 139, 149-52 (5th Cir. 1994); United States v. Sloan,
97 F.3d 1378, 1381-82 (11th Cir. 1996).

In a related argument, Talley asserts that the Supreme Court's deci-
sion in Jones v. United States, 526 U.S. 227, 67 U.S.L.W. 4204
(1999), requires a different result. Jones held that the three different
intent formulations in the federal carjacking statute, which provide for
three corresponding maximum sentences, constitute elements of the

                      3
offense and are not merely sentencing factors. See 67 U.S.L.W. at
4208. The Court also stated that "under the Due Process Clause . . .
and the notice and jury trial guarantees of the Sixth Amendment, any
fact (other than prior conviction) that increases the maximum penalty
for a crime must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt." Id. at 4209 n.6. Talley contends
that, under Jones, the weight and type of the controlled substance,
which will control the maximum sentence imposed, are elements of
the crime.

Talley did not raise the Jones claim below, and therefore, we
review for plain error. See United States v. Castner, 50 F.3d 1267,
1277 (4th Cir. 1995). Because Talley's analysis of Jones is novel and
he cites no case from any court adopting his interpretation of its appli-
cability in drug cases, it cannot be said that the district court plainly
and obviously erred in denying the motion for acquittal, especially
since Jones had not even been decided when Talley was sentenced.

IV.

Next, Talley complains of the district court's factual findings
regarding the drug quantity for which Talley was held responsible at
sentencing. We find that the district court held Talley responsible for
over 1.5 kilograms of crack cocaine without a proper factual finding.

The probation officer identified three witnesses who articulated
specific amounts of drugs in their trial testimony. Stewart McDonald
claimed that Talley was responsible for over 10.2 kilograms of crack
cocaine. Ronald Jerome Perkins recalled a .2 kilogram (nine ounces)
sale of powder cocaine. Finally, a conservative estimate of Earl
Thornton's recollection of his dealings with Talley resulted in respon-
sibility for 2.4 kilograms of powder cocaine. Therefore, the probation
officer recommended that Talley be held accountable for 10.2 kilo-
grams of crack cocaine and 2.6 kilograms of powder cocaine.

Talley objected to the acceptance of McDonald's testimony, con-
tending that he was a contradictory and unbelievable witness. The dis-
trict court stated that "even if you discount the testimony about the
10.2 kilograms, there's undisputed testimony about the [2.6 kilo-
grams] . . . I find by a preponderance of the evidence in the record

                     4
that a level 38 is the correct level because it exceeds 1.5 kilograms
of crack cocaine." The court then adopted the factual findings in the
presentence report.

We review the district court's factual findings as to drug quantity
for clear error. See United States v. D'Anjou , 16 F.3d 604, 614 (4th
Cir. 1994). The district court's statement that McDonald's testimony
could be discounted is not reconcilable with the district court's adop-
tion of the presentence report, which credited McDonald's testimony.
Therefore, it is unclear whether or not the district court accepted
McDonald's estimates. More importantly, the district court's entire
fact-finding in this regard was based on an erroneous premise.
According to the presentence report, if McDonald's testimony were
disregarded, Talley could only be held responsible for 2.6 kilograms
of powder cocaine, which would result in an offense level of 28. See
U.S. Sentencing Guidelines Manual § 2D1.1(c) (1998). The district
court incorrectly concluded that the remaining 2.6 kilograms were
crack cocaine and, thus, reasoned that McDonald's testimony would
not have increased Talley's sentence. See id. (1.5 kilograms or more
of crack cocaine equals a base offense level of 38). Because it is
unclear how the district court would have dealt with McDonald's tes-
timony had it realized the actual affect on Talley's sentence, we con-
clude that further fact-finding is required.

V.

Lastly, Talley contends that the court erred in sentencing him as a
career offender, because one of his predicate convictions occurred
during the time period of the instant conspiracy. While Talley asserts
that a predicate conviction, for which he was sentenced in 1991, was
sustained subsequent to the conduct forming the basis of the current
offense, the record is clear that Talley continued his unlawful activity
with drugs and was buying and selling crack cocaine as late as 1994.
Therefore, Talley's contention is without merit. See United States v.
Elwell, 984 F.2d 1289, 1298 (1st Cir. 1993).

Accordingly, we affirm Talley's conviction. We also affirm the
district court's determination that Talley is a career offender. How-
ever, we vacate Talley's sentence and remand for a determination of
the drug type and quantity for which Talley should be held responsi-

                    5
ble. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

                    6
