                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3255

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JOSHUA H INES,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 07 CR 773-1—Charles R. Norgle Sr., Judge.



   A RGUED JANUARY 26, 2010—D ECIDED F EBRUARY 23, 2010




 Before B AUER, P OSNER, and K ANNE, Circuit Judges.
  P OSNER, Circuit Judge. The defendant was convicted of
possessing crack cocaine with intent to distribute it and
was sentenced to 168 months in prison. He challenges
the sentence on the ground that the government failed
to prove that he possessed at least 1.5 kilograms of crack,
a quantity that increased his guidelines sentencing range.
  He admitted selling 64.4 grams of crack and the police
found another 9.1 grams in a search of his apartment. But
2                                               No. 08-3255

that is a combined weight of only 73.5 grams. What carried
him over the 1.5 kilogram threshold was his admission
to having bought 1.531 kilograms of powder cocaine,
which the prosecution translated into the identical
quantity of crack on the theory—which happens not to
be correct, though not challenged by the defen-
dant—that when you cook a gram of powder cocaine to
make crack you end up with a mixture or substance
that has the identical weight. (It is the weight of the
consumable mixture or substance containing the illegal
drug, rather than the weight of the illegal drug itself,
that counts for sentencing purposes. U.S.S.G. § 2D1.1,
Application Note 1 (2009); United States v. Stewart, 361
F.3d 373 (7th Cir. 2004); United States v. Trennell, 290
F.3d 881, 891 n. 7 (7th Cir. 2002).)
  The cooking process removes the hydrochloride
from cocaine hydrochloride (powder cocaine). The
cocaine alkaloid that remains—crack—weighs less.
Under “ideal conditions,” the weight loss is only
11 percent. U.S. Sentencing Commission, Report to
the Congress: Cocaine and Federal Sentencing Policy 63
(2007), www.ussc.gov/r_Congress/Cocaine2007.pdf (visited
Jan. 27, 2010); cf. U.S. Sentencing Commission, Special
Report to the Congress: Cocaine and Federal Sen-
tencing Policy 14 (1995), www.ussc.gov/crack/chap1-4.pdf
(visited Jan. 28, 2010). But bad cooks waste some of the
powder, raising the conversion ratio of powder to the
crack made from it. United States v. Hunter, 145 F.3d
946, 952 (7th Cir. 1998); United States v. Booker, 334 F.3d
406, 413 n. 3 (5th Cir. 2003). (In United States v. Fox, 189
F.3d 1115, 1120 (9th Cir. 1999), however, there was evi-
No. 08-3255                                                3

dence that the conversion ratio was 1:1 because of im-
purities introduced in the cooking process; as far as we
know, there was no similar evidence in this case.) If,
therefore, the government wants the sentencing judge
to infer the weight of the crack from the weight of the
powder from which the crack was manufactured, it has
to present evidence, concerning the cooking process, that
would enable a conversion ratio to be estimated. United
States v. Stott, 245 F.3d 890, 911-12 (7th Cir. 2001); United
States v. Hunter, supra, 145 F.3d at 952; United States
v. Chisholm, 73 F.3d 304, 307-08 (11th Cir. 1996).
  The 1:1 conversion ratio was a serious error, which
should be corrected when the defendant is resentenced,
as we will be ordering on a different ground.
  There may also have been double counting, although
that is another issue the defendant doesn’t raise: the
73.5 grams of crack that he admitted possessing may
have been cooked from the 1.531 grams of powder that
he had bought. That is another issue for consideration
at resentencing.
  The basis of the appeal is that the presentence investiga-
tion report states that someone identified only as “Individ-
ual A” told police officers that he had bought “powder
and/or crack cocaine from the defendant approximately
75 to 100 times, in amounts ranging from an ounce to
two and one-quarter ounces.” This is consistent with the
defendant’s having been a distributor of both powder
cocaine and crack cocaine, and if so there is no basis for
assuming that he cooked into crack all 1.531 kilograms of
powder that he bought. Even if we ignore the possible
4                                               No. 08-3255

double counting, the total amount of crack that he is
alleged to have possessed was only 1.604.5 kilograms. If
that figure is overstated by even as little as 6.5 percent
(104.6 grams÷1,604.5 grams), the defendant doesn’t reach
the 1.5 kilogram threshold (because 1,604.5 & 104.6=1,499.9).
As the government presented no evidence to contradict
the statement of “Individual A,” we cannot affirm the
sentence. Compare United States v. Taylor, 116 F.3d 269,
274 (7th Cir. 1997).
  The government does argue that the defendant
admitted that all the powder he bought was made into
crack, because when asked who had cooked the cocaine
that he had sold he said that he had. But he was being
asked about the identity of the cook rather than about
how much of the powder was cooked rather than sold as
powder.
  The sentence is vacated and the case remanded for
resentencing.




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