                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 12 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                      No. 97-7105
                                                         (E.D. Okla.)
 KELVIN LAMAR MURRAY, a/k/a                          (D.Ct. No. 97-CR-20)
 Mookie,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Appellant Kelvin Lamar Murray appeals pro se his conviction on one count

of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846, and two

counts of possession with intent to distribute a controlled substance in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In conjunction with his conviction,

Mr. Murray also appeals his sentence of 135 months imprisonment on each count,

to run concurrently. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.



      In early 1997, federal and state law enforcement agencies commenced an

investigation of alleged cocaine distribution by Rickie Dale Roberts, the owner of

a music store. The investigation coincided with information that both Mr.

Roberts and Mr. Murray, who was a music store employee, sold large quantities

of crack cocaine. As part of the investigation, an undercover drug task force

agent and an informant entered the music store and spoke to Mr. Murray. They

requested a meeting with Mr. Roberts in order to purchase $200 worth of crack

cocaine. After advising them Mr. Roberts only dealt in $500 to $1,000 sales of

cocaine, Mr. Murray telephoned Mr. Roberts with their proposal. Mr. Roberts

later arrived at the store, conversed in private with the informant, and then Mr.

Murray and the informant left briefly to retrieve the cocaine. On return, the

undercover agent purchased from Mr. Roberts approximately 4.1 grams of cocaine


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for $200. On three subsequent occasions, Mr. Roberts sold a total of 110.2 grams

of cocaine to the agent. All the cocaine tested positive for crack cocaine.



      At trial, the district court allowed into evidence, through testimony of the

undercover agent and voice recordings of Mr. Roberts, statements of Mr. Roberts

indicating Mr. Murray conspired in some degree in selling the cocaine, including

apparent delivery of the cocaine to Mr. Roberts. The undercover agent also

observed Mr. Murray on at least one occasion handle the bag of cocaine sold.



      Mr. Murray’s counsel filed a direct appeal claiming the district court erred

in allowing hearsay evidence as to Mr. Roberts’ conspiracy statements, and

insufficient evidence existed to: (1) show existence of a conspiracy; (2) support a

charge of possession; or (3) show any overt act by Mr. Murray in furtherance of

the conspiracy.



      Shortly thereafter, Mr. Murray filed a motion to proceed pro se on appeal

and file his own supplemental brief. We granted his motion. On appeal, Mr

Murray raises an ineffective assistance of counsel argument, listing several

specific errors which he alleges resulted in severe prejudice to his case. He also

claims the district court erred: (1) in allowing into evidence Mr. Roberts’ hearsay


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statements; (2) by basing his sentence on possession for crack cocaine rather than

cocaine base; and (3) applying the Sentencing Guideline that treats one gram of

cocaine base as the equivalent of 100 grams of cocaine powder.



                                      Discussion

      We give Mr. Murray, a pro se appellant, the benefit of addressing the

merits of both his and his counsel’s briefs on appeal. In addressing both briefs,

we note Mr. Murray’s pro se pleadings are to be construed liberally and held to a

less stringent standard than formal pleadings drafted by his lawyer. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S.

519, 520-21 (1972)).



      We begin with Mr. Murray’s claim that ineffective assistance by his

counsel at trial prejudiced his case. It is well established that, except in rare

cases, ineffective assistance of counsel claims should be brought in collateral

proceedings and not on direct appeal. See United States v. Galloway, 56 F.3d

1239, 1240 (10th Cir. 1995) (citing Beaulieu v. United States, 930 F.2d 805, 806-

07 (10th Cir. 1991)). Having reviewed Mr. Murray’s ineffective assistance of

counsel claims, we find no reason to address them on direct appeal. See

Galloway, 56 F.3d at 1242-43 (discussing rare instance in which ineffective


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assistance of counsel claim may be brought on direct appeal).



      We next conclude the district court properly admitted into evidence the

statements of Mr. Roberts. Under Federal Rule of Evidence 801(d)(2)(E),

statements by a co-conspirator during the course and in furtherance of the

conspiracy are not hearsay and are therefore admissible as substantive evidence

against other members of the conspiracy. United States v. Williamson, 53 F.3d

1500, 1517 (10th Cir.), cert. denied, 516 U.S. 882 (1995). A review of the record

establishes the district court, in considering the admission of the statements,

found a preponderance of the evidence showed a conspiracy existed, Mr. Murray

and Mr. Roberts conspired together, and Mr. Roberts’ statements came in the

course of and in furtherance of the conspiracy. Hence, sufficient evidence existed

to trigger the admission of Mr. Roberts’ statements. Williamson, 53 F.3d at 517-

18.



      We next examine Mr. Murray’s insufficiency of the evidence argument.

Our standard of review for sufficiency of the evidence “is to determine whether,

after reviewing the record as a whole, the evidence – both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom – is

sufficient if, when taken in the light most favorable to the government, a


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reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt.” United States v. Leopard, 936 F.2d 1138, 1140 (10th Cir. 1991) (internal

quotation marks and citation omitted). We have reviewed the record and find

sufficient evidence exists to establish Mr. Murray’s involvement in the conspiracy

and his possession of cocaine.



      Mr. Murray next argues the district court improperly calculated his base

offense level on possession for crack cocaine rather than cocaine base.

Specifically, he suggests the government failed to meet its burden of proving the

substance contained “hydroxylion [sic]” as required under Amendment 487,

United States Sentencing Guideline § 2D1.1. Because Mr. Murray did not raise

this issue before the district court, we review the issue for plain error. United

States v. Brooks, 161 F.3d 1240, 1247 (10th Cir. 1998).



      In Brooks, we rejected an argument similar to Mr. Murray’s, finding that no

plain error occurred where the defendant received a sentence based on cocaine

base, or crack cocaine rather than powder, even though no evidence showed the

cocaine base contained sodium bicarbonate. 161 F.3d at 1248-49. We concluded

U.S.S.G. § 2D1.1 merely referenced sodium bicarbonate as an example of a

substance “usually” contained in cocaine base. Id. at 1248. Likewise, we note


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the Sentencing Guideline’s reference to “hydrochloride” (not “hydroxylion”) as a

substance “usually” used in making cocaine base is merely an example of

substances used in making cocaine base. See U.S.S.G. § 2D1.1(c), note D and

App. C, Amendment 487. Moreover, under the Sentencing Guidelines, “cocaine

base” means “crack” for the purposes of sentencing. Id. The record clearly

shows the substance in issue tested as “crack” cocaine. Thus, the district court

did not err in sentencing Mr. Murray for crack cocaine, even if no evidence

established the substance contained “hydrochloride” or “hydroxylion.”



      Finally, Mr. Brooks argues the district court erred in calculating his base

offense level under the Sentencing Guidelines for crack cocaine because it

equates one gram of crack to 100 grams of powder cocaine, which he says denies

equal protection to blacks who presumably are more likely to use crack cocaine.

This argument is foreclosed by our other decisions upholding the 100-to-1 cocaine

base-to-powder base sentencing ratio in similar constitutional challenges. See

United States v. Williams, 45 F.3d 1481, 1485-86 (10th Cir. 1995) (equal

protection challenge); United States v. Turner, 928 F.2d 956, 959-60 (10th Cir.)

(Fifth Amendment due process challenge), cert. denied, 502 U.S. 881 (1991).




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For these reasons, we AFFIRM the conviction and sentence.




                                   Entered by the Court:

                                   WADE BRORBY
                                   United States Circuit Judge




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