                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 05-30611
                Plaintiff-Appellee,               D.C. No.
               v.                            CR-04-00140-HRH
ARTHUR L. HOLLIS,                               AMENDED
             Defendant-Appellant.
                                                 OPINION

       Appeal from the United States District Court
                for the District of Alaska
     H. Russel Holland, Chief District Judge, Presiding

                  Argued and Submitted
           December 5, 2006—Seattle, Washington

                       Filed June 20, 2007

   Before: M. Margaret McKeown and Betty B. Fletcher,
 Circuit Judges, and William W Schwarzer,* District Judge.

                  Opinion by Judge Schwarzer




  *The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

                                7379
7382              UNITED STATES v. HOLLIS


                        COUNSEL

Matthew M. Robinson, Robinson & Brandt, P.S.C., Cincin-
nati, Ohio, for the defendant-appellant.

Jo Ann Farrington, Assistant United States Attorney, Deborah
M. Smith, Acting United States Attorney, Anchorage, Alaska,
for the plaintiff-appellee.
                   UNITED STATES v. HOLLIS                7383
                         OPINION

SCHWARZER, District Judge:

   Arthur Hollis (Hollis) was sentenced to 240 months’
imprisonment after a jury convicted him of distribution of
cocaine base and maintaining drug-involved premises in vio-
lation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 21 U.S.C.
§§ 856(a)(1) & (b), respectively. He challenges his conviction
and his sentence, contending that evidence of sales by Hollis
to a government informant prior to the charged sale should
not have been admitted, that evidence seized from his apart-
ment should have been suppressed, that the evidence that he
used two apartments to manufacture crack was insufficient to
sustain his conviction on those counts, that he was improperly
sentenced under 21 U.S.C. § 841(b)(1)(A) for distribution of
cocaine base, and that his sentence was improperly based on
the fact of his prior conviction. We find his contentions to be
without merit and affirm.

      FACTUAL AND PROCEDURAL HISTORY

   Anchorage police arranged with a local drug dealer to assist
in the investigation and prosecution of other drug dealers. The
cooperating witness had purchased substantial quantities of
crack from Hollis on prior occasions. Police arranged a ren-
dezvous for the witness to purchase nine ounces of crack from
Hollis while under surveillance. While waiting for Hollis, the
witness was approached by two individuals asking for drugs;
the witness brushed them off and left for another meeting
place. After sale of the crack by Hollis to the witness had
been consummated, police followed Hollis to a two-apartment
dwelling on North Hoyt Street.

   Hollis was not arrested until several months later when
police again followed him. Upon his arrest, police searched
his truck and found wrapping paper contaminated with
cocaine and a digital scale with cocaine residue. When ques-
7384               UNITED STATES v. HOLLIS
tioned, Hollis and his girlfriend gave their address as apart-
ment No. 1 on North Hoyt Street, which turned out to be
false.

   Police obtained a search warrant for apartment No. 1, but
found it occupied by someone else. After inquiries, police
obtained warrants to search apartment No. 2, as well as an
apartment on South Bragaw Street to which Hollis had been
followed the day before. On executing the warrant at apart-
ment No. 2, police observed evidence that the occupants
recently attempted to clean the apartment. They found powder
cocaine and crack, residue of both, and baking soda and
implements used in the manufacture of crack. Other evidence
was found linking Hollis to the apartment. In the search of the
South Bragaw apartment, packaged crack cocaine was found
along with materials and implements used in the manufacture
of crack. Hollis’s fingerprints were recovered from one of the
plastic bags and from a glass jar, which both contained
cocaine residue.

   Hollis was indicted on one count of distributing fifty grams
or more of cocaine base and two counts of using or maintain-
ing a place for the purpose of manufacturing crack. The Gov-
ernment gave notice pursuant to 21 U.S.C. § 851 that it would
seek enhanced penalties based on Hollis’s prior felony drug
offense. Hollis’s motion to suppress the fruits of the searches
of the apartments was denied, as was his motion to exclude
on due process grounds the testimony of the cooperating wit-
ness on the basis that he had continued to engage in drug deal-
ing. The jury returned a verdict of guilty on all three counts.

   At the sentencing hearing, Hollis argued that the enhanced
penalties under § 841(b)(1)(A) could not be imposed on him
because there were no jury findings that he had distributed
fifty grams or more of crack or that his prior offense was a
drug-related felony. The court rejected Hollis’s argument and
sentenced him under 21 U.S.C. § 841(b)(1)(A) to the manda-
                    UNITED STATES v. HOLLIS                 7385
tory minimum term of 240 months. This timely appeal fol-
lowed.

                        DISCUSSION

                               I.

   Hollis contends that it was error to admit the cooperating
witness’s testimony about the uncharged drug transactions as
prior bad act evidence under Federal Rule of Evidence 404(b).
We review evidentiary rulings for abuse of discretion. United
States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004). “In
making this determination, reviewing courts consider whether
the decision was based on relevant factors and whether there
was ‘a clear error of judgment.’ ” Id. (quoting United States
v. Soulard, 730 F.2d 1292, 1296 (9th Cir. 1984)). The ruling
will be reversed if it “lies beyond the pale of reasonable justi-
fication under the circumstances.” Harman v. Apfel, 211 F.3d
1172, 1175 (9th Cir. 2000).

   [1] Other act evidence is admissible under Rule 404(b) if
it “(1) tends to prove a material point in issue; (2) is not too
remote in time; (3) is proven with evidence sufficient to show
that the act was committed; and (4) if admitted to prove
intent, is similar to the offense charged.” United States v.
Beckman, 298 F.3d 788, 794 (9th Cir. 2002). Hollis does not
challenge the evidence’s materiality, closeness in time or sim-
ilarity to the charged offense. Instead, he argues that the evi-
dence was insufficient because it consisted only of the
testimony of the cooperating witness, who was a convicted
felon. Hollis maintains that because the witness was involved
in criminal activity while working for the police, the witness’s
testimony is inherently unreliable. Hollis’s argument goes to
the weight of the evidence, not its admissibility. On that
score, the district judge specifically instructed the jury “to
examine [the cooperating witness’s] testimony with greater
caution than that of other witnesses.”
7386                   UNITED STATES v. HOLLIS
   [2] Hollis argues further that the testimony should have
been excluded as prejudicial under Rule 403. We disagree.
The district judge carefully weighed the prejudicial effect
against the probative value of the testimony. He found the
evidence to have little prejudice but to be helpful in providing
the jury with the necessary background to put the charged
transactions between Hollis and the cooperating witness into
context. In addition, the court gave the jury a limiting instruc-
tion to consider the testimony only on the question of Hollis’s
intent or knowledge, not for any other purpose. See United
States v. Hinton, 31 F.3d 817, 823 (9th Cir. 1994). There was
no abuse of discretion.

                                   II.

   Hollis next contends that the district court erred in failing
to suppress the evidence obtained in the search of the North
Hoyt apartment.1 We review the denial of a motion to sup-
press evidence de novo, with the district judge’s factual find-
ings reviewed for clear error. United States v. Gorman, 314
F.3d 1105, 1110 (9th Cir. 2002).

   [3] Hollis argues that the warrant application rested primar-
ily on information from the cooperating witness, as a confi-
dential source, and lacked sufficient probable cause because
it failed to disclose information relevant to the witness’s
veracity. In fact, the affidavit rested primarily on the police
officers’ own observation of the controlled drug transaction
between Hollis and the witness and the surveillance of Hol-
lis’s subsequent movements, which led to the North Hoyt
apartment. The references to the cooperating witness were
limited to his role in setting up the drug transaction and
played no part in the determination that probable cause
existed that evidence of drug dealing would be found in the
apartment. The district judge properly admitted the evidence
  1
    Hollis concedes that he does not have standing to challenge the search
of the South Bragaw apartment.
                    UNITED STATES v. HOLLIS                7387
obtained from the search of the North Hoyt apartment because
the affidavit demonstrated a fair probability that contraband
would be found there. See Illinois v. Gates, 462 U.S. 213, 238
(1983).

                              III.

   Hollis contends that it was error to deny his motion under
Federal Rule of Criminal Procedure 29 for acquittal of the
charges under the maintaining premises counts of the
indictment—Counts Two and Three—because there was
insufficient evidence of drug manufacturing at the North Hoyt
apartment and of his control of the South Bragaw apartment.
Denial of a motion for acquittal under Rule 29 is reviewed de
novo, with the appellate court examining the ruling in the
light most favorable to the Government and asking whether
“any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.” United States
v. Johnson, 357 F.3d 980, 983 (9th Cir. 2004) (quotation
omitted).

    Under 21 U.S.C. § 856(a)(1) it is unlawful to “knowingly
. . . use . . . any place . . . for the purpose of manufacturing
. . . any controlled substance.” Hollis concedes that he resided
at the North Hoyt apartment but argues that there was no evi-
dence that it was used to manufacture controlled substances
or that he had knowledge of such a use.

   [4] To the contrary, there was abundant evidence of drug
manufacturing at the North Hoyt apartment. The search of the
apartment revealed a large number of items used in the manu-
facture of crack from powder cocaine, all contaminated with
cocaine residue or remnants of crack cocaine. Police seized
oven mitts, metal pots, a strainer, and mop water, all of which
had trace amounts of cocaine residue on them. Baggies with
cocaine residue, bits of crack cocaine, and baking soda were
also seized. Viewing this evidence in the light most favorable
to the Government, a reasonable jury could have found
7388                UNITED STATES v. HOLLIS
beyond a reasonable doubt that Hollis manufactured con-
trolled substances at the North Hoyt apartment.

   [5] With respect to the South Bragaw apartment, Hollis
does not contend that it was not used to manufacture con-
trolled substances. Instead, he argues only that he did not
“manage or control” the apartment. However, to “manage or
control” premises is a requirement of § 856(a)(2), but not
§ 856(a)(1), the statute of conviction. Rather, as amended in
2003, § 856(a)(1) criminalizes the “use” of “any place,
whether permanently or temporarily” to manufacture drugs.
PROTECT Act of 2003, Pub. L. No. 108-21, § 608 (amending
21 U.S.C. § 856(a)(1) “by striking ‘open or maintain any
place’ and inserting ‘open, lease, rent, use, or maintain any
place, whether permanently or temporarily’ ”). The jury
instruction reflected the 2003 amendment. Evidence showed
that Hollis’s fingerprints were found on a glass jar and a plas-
tic baggie both containing cocaine residue, and that, one day
prior to the search, police had observed him staying at the
apartment for a few hours. Viewing the evidence in the light
most favorable to the Government, a reasonable jury could
have found that Hollis “used” the South Bragaw apartment to
manufacture drugs.

                              IV.

   The district judge found that § 841(b)(1)(A)’s twenty-year
mandatory minimum applied to Hollis because the jury found
him guilty of distributing fifty grams of cocaine base and the
court found that he had a prior felony drug conviction. Hollis
argues that both findings violated Apprendi’s holding that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). Preserved Apprendi challenges are
reviewed de novo. United States v. Smith, 282 F.3d 758, 771
(9th Cir. 2002).
                       UNITED STATES v. HOLLIS                      7389
  A.    Cocaine Base

   [6] Under Apprendi, drug type and quantity “are facts that
have the potential to increase the maximum sentence” to
which the defendant is exposed, and these facts must be
alleged in the indictment, submitted to the jury, and proven
beyond a reasonable doubt. United States v. Toliver, 351 F.3d
423, 430 (9th Cir. 2003) (holding that under §§ 841(a) and
841(b)(1) drug quantity and type are functional equivalents of
elements of the offense when a finding would expose the
defendant to an increased maximum sentence). Under
§ 841(b), a defendant is subject to a sentence of twenty years
to life if he distributes five kilograms of “cocaine, its salts,
optical and geometric isomers, and salts of isomers,” 21
U.S.C. § 841(b)(1)(a)(ii), or fifty grams of “a mixture or sub-
stance . . . which contains cocaine base,” 21 U.S.C. § 841(b)
(1)(A)(iii).2 If he distributes fifty grams of cocaine, he faces
a maximum of twenty years and no minimum under 21 U.S.C.
§ 841(b)(1)(C).3 Thus, subsection (iii) increases the maximum
—and imposes a minimum—sentence for distributing cocaine
base over the sentence for the same quantity of cocaine.

   Here, the district judge seemingly satisfied Apprendi
because the indictment alleged that Hollis distributed “50
grams or more of cocaine base,” the special verdict form
asked the jury whether Hollis was guilty of “distribution of
fifty (50) grams or more of cocaine base,” and the jury found
him so. Hollis argues, however, that proof of drug type
required a determination of whether the drugs involved in the
offense were “crack” cocaine, rather than some other form of
“cocaine base,” because Congress intended to impose the
  2
    If Hollis did not have a prior felony drug conviction the sentencing
range would be ten years to life.
  3
    Although Hollis’s sentence was within this range, Apprendi is impli-
cated because the finding of cocaine base exposed him to a higher maxi-
mum, i.e. life. See United States v. Velasco-Heredia, 319 F.3d 1080, 1084-
85 (9th Cir. 2003).
7390                UNITED STATES v. HOLLIS
enhanced penalties only where crack is involved. That deter-
mination, he contends, is a fact that increases the penalty for
the offense beyond the prescribed statutory maximum for
cocaine. He argues that because “crack” was not charged in
the indictment or found by the jury, Apprendi should have
precluded the imposition of the increased sentence.

   [7] Hollis’s argument requires us to address the interpreta-
tion of cocaine base in § 841(b)(1)(a)(iii). This issue has been
before different courts of appeals a number of times but
always in a different context. Until now the courts have dealt
with the issue in the sentencing context, i.e. whether the sub-
stance a defendant had been found to have distributed quali-
fied as cocaine base for the purpose of imposing the enhanced
penalty. See, e.g.; United States v. Edwards, 397 F.3d 570
(7th Cir. 2005); United States v. Brisbane, 367 F.3d 910 (D.C.
Cir. 2004); United States v. Barbosa, 271 F.3d 438 (3d Cir.
2001). In this case of first impression, we must consider the
issue in the context of Apprendi, i.e. whether a conviction
under (iii) requires the government to charge, and the jury to
find, more than that defendant distributed cocaine base.

   We considered the definition of cocaine base in the sen-
tencing context in United States v. Shaw, 936 F.2d 412 (9th
Cir. 1991). There the defendant argued that he could not be
sentenced for distributing cocaine base in the absence of proof
that the substance contained “a hydroxylion (OH—) such that
it is a ‘base,’ as the term is used in chemistry.” Id. at 414.
After review of the legislative history, the commentaries to
the Sentencing Guidelines, and various dictionary definitions,
we rejected that argument. Id. at 414-15. We concluded “that
Congress and the [Sentencing] Commission must have
intended the term ‘cocaine base’ to include ‘crack’ or ‘rock
cocaine,’ which we understand to mean cocaine that can be
smoked unlike cocaine hydrochloride.” Id. at 416. While
Shaw tells us that cocaine base includes crack, it does not
                       UNITED STATES v. HOLLIS                       7391
establish what facts § 841(a) requires a jury to find to sustain
a conviction for distributing cocaine base.4

   There can be no doubt that when Congress adopted the
Anti-Drug Abuse Act of 1986, it meant to deal with what it
saw as a crack epidemic sweeping the country. See Shaw, 936
F.2d at 415-16; see also Brisbane, 367 F.3d at 912; United
States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992). But
when it directed the most severe penalties at distribution of
cocaine base, its terminology swept beyond crack. While all
crack is cocaine base, not all cocaine base is crack. Edwards,
397 F.3d at 571. Indeed, cocaine in its natural form is cocaine
base. Brisbane, 367 F.3d at 911. When the leaves of the coca
plant are shredded and mashed with a strong alkali, a solvent,
and sulfuric acid, a paste is produced containing cocaine base
that is smokeable. Id. Only when the paste is processed with
hydrochloric acid to create a salt, cocaine hydrochloride, does
it become what is commonly known as cocaine, i.e. a white
powder. Id. Beginning in the 1970s, American drug dealers
developed methods for freeing the cocaine base from cocaine
hydrochloride. Id. Initially they freebased cocaine using a pro-
cess prone to explosions. Id. In the 1980’s, they began to
  4
    Shaw relied in part on the commentary to the Sentencing Guidelines’
definition of cocaine base which, at the time, equated cocaine base with
crack. Shaw, 936 F.2d at 415. The Guidelines have since been amended
to define “cocaine base” as follows: “Cocaine base, for the purpose 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, rock-like form.” U.S. Sen-
tencing Guidelines Manual § 2D1.1(c), note D. The Shaw court “cons-
true[d] the statute and the guidelines to be consistent with each other in
their use of the term ‘cocaine base.’ ” Shaw, 936 F.2d at 415. That holding
and the subsequent amendment to the Guidelines are consistent with our
conclusion that the term “cocaine base” as used in § 841(b)’s enhanced
penalty provisions is limited to “crack” cocaine. See also United States v.
Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994) (relying on the amended
Guidelines 2D1.1(c) definition of “cocaine base” to conclude that “cocaine
base” as used in the mandatory minimum sentencing provision of 21
U.S.C. § 952(a) is limited to “crack” cocaine).
7392                UNITED STATES v. HOLLIS
manufacture what came to be known as crack by cooking
cocaine hydrochloride with baking soda. Id.

   [8] Thus, cocaine and cocaine base are chemically identi-
cal. If any form of cocaine base qualifies for the enhanced
penalties under the statute, then subsection (iii) swallows sub-
section (ii). Edwards, 397 F.3d at 574. Yet, as we noted in
Shaw, Congress clearly intended to make a distinction
between powder cocaine and the more potent and addictive
form of smokeable “cocaine base” known as “crack” or
“rock” cocaine. Shaw, 936 F.2d at 415-16. We read the stat-
ute, therefore, as requiring the indictment to charge and the
jury to find “crack” to trigger the enhanced penalties associ-
ated with cocaine base. Our holding is consistent with the one
other circuit that has decided this issue post-Apprendi. See
Edwards, 397 F.3d at 575 (reaffirming circuit precedent that
for purposes of the statutory minimum penalties in 21 U.S.C.
§ 841(b), the enhanced penalties for “cocaine base” apply
only where the substance is “crack cocaine” and “lesser pen-
alties apply to all other forms of cocaine”); cf. Brisbane, 367
F.3d at 914-15 (declining to choose among two definitions of
“cocaine base”—as limited to “crack” cocaine or including
other as yet undiscovered “smokeable” forms of cocaine base
—because the government failed to prove that the substance
at issue satisfied either definition).

   [9] While an Apprendi error occurred in this case, it was
harmless beyond a reasonable doubt. There was overwhelm-
ing and uncontradicted evidence at trial that the substance
Hollis distributed was crack. See, e.g., Smith, 282 F.3d at 771-
72 (holding that constitutional Apprendi error was harmless
beyond a reasonable doubt where overwhelming evidence of
the quantity of drugs was admitted at trial and went unchal-
lenged by the defendant at trial and in the presentence report.)
Various witnesses testified without contradiction that the
drugs the cooperating witness purchased from Hollis were
crack. Hollis did not dispute at trial, in his objections to the
Presentence Report (PSR), or at sentencing the fact that what
                    UNITED STATES v. HOLLIS                  7393
he distributed was crack. The district judge found that “there
is absolutely no doubt whatever, based on the evidence pres-
ented in this case, that the substance that is the subject of this
case was . . . crack cocaine.” We agree and conclude that the
constitutional Apprendi error was harmless beyond a reason-
able doubt. See id.

  B.   Prior Felony Drug Conviction

   Hollis further contends that the district judge committed
Apprendi error when he applied the enhancement for a “prior
conviction for a felony drug offense [which] has become
final” without a jury finding. 21 U.S.C. § 841(b)(1)(A). Hollis
makes two arguments. First, he argues that the decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998),
creating an exception to Apprendi for prior convictions, is
flawed and will soon be overruled. We rejected this argument
in United States v. Quintana-Quintana, 383 F.3d 1052, 1053
(9th Cir. 2004), and remain bound by Almendarez-Torres.
Second, he argues that because application of the enhance-
ment here turns on disputed facts, it falls outside the
Almendarez-Torres exception. See Shepard v. United States,
544 U.S. 13 (2005).

   [10] Hollis does not dispute the prior conviction but con-
tends that the enhancement requires determination of facts
about the prior offense, i.e., whether it was a “felony drug
offense” and that it was final. To determine whether a prior
conviction qualifies as a drug trafficking offense, we look
only to the fact of conviction and the statutory definition of
the prior offense. United States v. Morales-Perez, 467 F.3d
1219, 1221 (9th Cir. 2006). Here, the PSR, to which no
exception was taken, reports that in 1994 Hollis was found
guilty by a jury of “misconduct involving a controlled sub-
stance 3rd degree,” sentenced to four and one-half years
imprisonment, and released from custody in 1998. The Alaska
statute makes it a class B felony to engage in “misconduct
involving a controlled substance,” and subjects a defendant to
7394               UNITED STATES v. HOLLIS
the possibility of ten years’ imprisonment. Alaska Stat.
§ 11.71.030; Alaska Stat. § 12.55.125; see also 21 U.S.C.
§ 802(44) (defining “felony drug offense” as any [drug]
offense “punishable by imprisonment for more than one year
under any law of the United States or of a State”). Thus, there
can be no question that the previous conviction was for a fel-
ony drug offense and that it was final. This case does not
involve the judicial fact-finding implicated in Shepard. 544
U.S. at 26 (holding that inquiry into the elements and facts
underlying an offense is limited to the “charging document,
the terms of a plea agreement or transcript of colloquy
between judge and defendant . . . or to some comparable judi-
cial record”). The district court committed no error in finding
that Hollis’s prior conviction qualified as a felony drug
offense.

  AFFIRMED.
