      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                    For the First Circuit


No. 00-1299

                        UNITED STATES,

                          Appellee,

                              v.

                         KYLE MINTON,

                    Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Nathaniel M. Gorton, U.S. District Judge]


                            Before

                   Selya, Boudin and Lynch,
                       Circuit Judges.




     James R. Knudsen and Whittenberg & Associates on brief for
appellant.
     Donald K. Stern, United States Attorney, and Heidi E.
Brieger, Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.



                         May 14, 2001
           Per Curiam.      Kyle Minton appeals from his 74-month

sentence imposed following a guilty plea to possession and

distribution of cocaine base.             Minton’s sole argument on

appeal is that the district court erred in applying the

enhancement      for   crack     cocaine     under     the     Sentencing

Guidelines.   Specifically, Minton argues that the government

proved only that the substance at issue was “cocaine base,”

but failed to prove that it was “crack,” the only form of

cocaine base to which the sentencing enhancement applies. We

remanded   for    further      findings    and,   if    necessary,      an

evidentiary hearing regarding the type of drugs that Minton

possessed and sold.

           On remand, the district court held an evidentiary

hearing on April 2, 2001, to determine, in the court’s

words, “whether the substance at issue was the crack form of

cocaine base or some other form of cocaine base.”                At that

hearing, Drug Enforcement Administration (DEA) Special Agent

David O’Neill testified. Id., p. 4.            After being found by

the district court to be fully qualified to testify on the

subject,   Special     Agent   O’Neill     testified    that    the   drug

substance seized was “lumpy and rocky with an off-white

color, all characteristics which indicated to him that it

was crack cocaine.”       Subsequent laboratory tests confirmed

that “the active drug ingredient is cocaine base.”
          Recent opinions of this court have clarified the

“cocaine base/crack distinction in the sentencing context.”

United States v. Richardson, 225 F.3d 46, 49 (1st Cir. 2000).

               Both the statute and the Guidelines
          impose significantly greater penalties
          for   distributing   (or    manufacturing,
          dispensing, or possessing with intent to
          manufacture, distribute, or dispense) a
          given quantity of “cocaine base” rather
          than an equivalent quantity of “cocaine”
          (i.e., cocaine hydrochloride or powder
          cocaine).        See     21     U.S.C.    §
          841(b)(1)(A)(ii),   (iii);     U.S.S.G.   §
          2D1.1(c).   Neither the statute nor the
          drug-quantity table in the Guidelines
          that establishes the offense level uses
          the word “crack.”    Section 841(b) does
          not define “cocaine base,” but we have
          held that the term, as used in the
          statute, includes all forms of cocaine
          base, including but not limited to
          crack. See United States v. Lopez-Gil,
          965 F.2d 1124, 1134 (1st Cir. 1992)
          (opinion on panel rehearing).      As used
          in the Guidelines, however, “cocaine
          base” has, since a 1993 amendment, a
          narrower meaning: “‘Cocaine base,’ for
          the purposes of this guideline, means
          ‘crack.’ ‘Crack is the street name for
          a form of cocaine base, usually prepared
          by processing cocaine hydrochloride and
          sodium    bicarbonate,      and     usually
          appearing in a lumpy, rocklike form.”
          U.S.S.G. § 2D1.1 Node (D).              For
          Guidelines purposes, then, forms of
          cocaine base other than crack are
          treated as cocaine. See U.S.S.G. App. C,
          Amend. 487 (1993).

Id.

          Therefore,   proof   that   a   substance   meets   the

chemical definition of cocaine base does not suffice to

prove that the guideline definition of cocaine base (i.e.,

crack) applies.   “Chemical analysis cannot distinguish crack

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from any other form of cocaine base because crack and all

other forms of cocaine base are identical at the molecular

level. . . . Crack can be differentiated from other cocaine

bases only by appearance and texture.” United States v.

Robinson, 144 F.3d 104, 109 (1st Cir. 1998).                     However, once

the   government       has    proven     by    chemical     analysis    that   a

substance is cocaine base, lay opinion testimony may suffice

to prove that it is crack. Richardson, 225 F.3d at 50.

            Based upon Special Agent O’Neill’s sworn testimony,

DEA reports, and Minton’s answers to questions posed to him

by the court at his change-of-plea hearing, the district

court found that “the government has satisfied its burden of

proving,    by   a     preponderance          of   the   evidence,    that   the

substance at issue was the crack form of cocaine base.”

            In our order remanding this case, we permitted the

parties to file supplemental briefs within twenty days of

the filing of the district court’s supplemental report.

That document was received by this court on April 6, 2001.

Neither    party     has     filed   a   supplemental       brief.      In   all

events, it is readily apparent that the district court’s

finding    survives        clear-error         review.      Once     scientific

evidence established that the substance was cocaine base,

“competent       lay     testimony,       remarking        the     substance’s

distinctive appearance and texture and identifying it as

crack, forged the final link in the evidentiary chain.”

United States v. Martinez, 144 F.3d 189, 190 (1st Cir. 1998).

            The sentence is affirmed.
                                   By the Court:
                                   PHOEBE MORSE, Clerk




                                   By:
                                     Chief Deputy Clerk


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[cc: Heidi E. Brieger, Esq., Dina Chaitowitz, Esq.,

                James Knudsen, Esq.]
