UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4878

WILLADEUR ALPHONSE, a/k/a Kiki,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4892

JOSEPH HUGHEY, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CR-96-108)

Submitted: October 7, 1997

Decided: October 31, 1997

Before HALL and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

D. Erik Albright, SMITH, HELMS, MULLISS & MOORE, L.L.P.,
Greensboro, North Carolina; John Stuart Bruce, Acting Federal Public
Defender, Gregory Davis, Assistant Federal Public Defender, Greens-
boro, North Carolina, for Appellants. Walter C. Holton, Jr., United
States Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Willadeur Alphonse and Joseph Hughey, Jr. ("Defendants"), each
pled guilty to conspiring to possess with intent to distribute crack
cocaine and cocaine hydrochloride in violation of 21 U.S.C.A.
§§ 841(b)(1)(A), 846 (West Supp. 1997).* The court sentenced
Alphonse to 160 months imprisonment to be followed by a five-year
supervised release term and sentenced Hughey to an 87-month prison
term and five years of supervised release. They appeal their sentences,
contending that the district court erred in sentencing them based on
crack cocaine instead of cocaine hydrochloride. Finding no error, we
affirm.

I.

Hughey told a confidential informant that he knew Alphonse and
could obtain drugs from him. The informant arranged for Alphonse
to deliver about ten ounces of crack cocaine to a buyer. Hughey and
_________________________________________________________________
*Alphonse and Hughey also were indicted for possession with intent
to distribute 288.2 grams of crack cocaine and 8 grams of cocaine hydro-
chloride, but the court dismissed this count on the government's motion.

                    2
the informant met Alphonse at the airport, and they drove to a motel
to wait for the buyer to arrive. Before they arrived at the motel,
authorities conducted a felony vehicle stop, arrested Hughey and
Alphonse, and seized 288.2 grams of crack cocaine and eight grams
of cocaine hydrochloride. The district court accepted Alphonse and
Hughey's guilty pleas to conspiracy, finding that they were entered
knowingly and voluntarily and that a factual basis supported the
pleas.

At the sentencing hearing, Defendants objected to the probation
officer's calculation of their base offense levels based on crack
cocaine rather than cocaine hydrochloride. They contended that there
was no sodium bicarbonate present to bring the drugs within the defi-
nition of "crack" in U.S. Sentencing Guidelines Manual § 2D1.1(c),
note (D) (1995).

Testimony at the hearing from an agent with the Drug Enforcement
Administration ("DEA") disclosed that the drugs seized from Defen-
dants were in two packages, that the larger package contained an off-
white rocky substance, and that based on his experience, he believed
the larger package contained crack cocaine. And an expert in forensic
chemistry testified that she conducted several tests that determined
the larger package contained cocaine base, commonly referred to as
crack. On cross-examination, the chemist stated that the drugs could
be crack cocaine even when sodium bicarbonate, baking powder,
ammonia, or lye--substances commonly used to cook powder
cocaine into crack--did not appear in the laboratory analysis. She
noted that none of those additional substances appeared in the tests
she ran but that she did not test specifically for their presence.

Based on the testimony presented at the sentencing hearing, the
district court found the evidence sufficient to sentence Defendants
based on crack cocaine. The court also noted that the indictment
charged Defendants with conspiring to possess with intent to distrib-
ute 288.2 grams of cocaine base ("crack"); that at the plea colloquy,
Defendants entered guilty pleas to that indictment; and that a factual
basis supported the pleas. This appeal followed.

II.

Defendants contend that the district court erred in calculating their
base offense levels because the government failed to prove that the

                    3
drugs they conspired to distribute were crack cocaine, as opposed to
another form of cocaine base. See U.S.S.G. § 2D1.1(c), note (D) (spe-
cifically noting that "crack" is but one form of "cocaine base"). In
reviewing the district court's application of the sentencing guidelines,
we review factual determinations for clear error, while legal determi-
nations are subject to de novo review. See United States v. Blake, 81
F.3d 498, 503 (4th Cir. 1996).

Although Defendants rely primarily on United States v. James, 78
F.3d 851 (3d Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3259
(U.S. Oct. 7, 1996) (No. 95-9224), and United States v. Munoz-
Realpe, 21 F.3d 375 (11th Cir. 1994), their reliance is misplaced.
James involved an indictment that charged possession of "a detectable
amount of cocaine base" and an ambiguous plea colloquy. See 78
F.3d at 855-56. Furthermore, the issue was hotly litigated at sentenc-
ing, and the district court eschewed any specific factual findings,
holding only that "cocaine base means crack for purposes of the
guidelines." Id. at 856-57. Faced with the ambiguities in the record
and the lack of factual findings by the district court, the Third Circuit
found that the government had failed to prove that the substance at
issue was crack cocaine. The court then remanded for resentencing.
Id. at 858.

In Munoz-Realpe, the defendant pled guilty to importation of "co-
caine." He argued at sentencing that the drug at issue in his case, "co-
caine base in liquid form," should be treated as cocaine powder for
sentencing purposes. The Eleventh Circuit affirmed the district
court's factual finding that the substance was not crack cocaine. See
21 F.3d at 376-77 (noting that cocaine base in liquid form requires
further processing and can just as easily be made into powder cocaine
as crack cocaine).

Unlike James and Munoz-Realpe, however, the evidence in this
case is unambiguous--the record discloses no indication that the
cocaine attributed to Alphonse and Hughey was any form of cocaine
base other than crack. See United States v. Hall, 109 F.3d 1227, 1235-
36 (7th Cir. 1997). The DEA agent testified that the larger package
of drugs contained an off-white rocky substance that, based on his
experience, he believed was crack cocaine. Moreover, a forensic
chemist testified that the drugs were crack cocaine and that the

                     4
absence of sodium bicarbonate did not conclusively determine
whether or not the drugs were crack cocaine. Finally, Defendants
offered no proof that the drugs were any other form of cocaine base.
We therefore find that the district court's factual finding that the
cocaine was crack cocaine for purposes of the sentencing guidelines
was not clearly erroneous and that the court properly sentenced
Defendants based on crack cocaine.

Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

                    5
