                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 05-4187
RAUL CASTILLO RAMOS,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
             Alexander Williams, Jr., District Judge.
                            (CR-04-293)

                       Argued: March 17, 2006

                      Decided: September 5, 2006

       Before WIDENER and TRAXLER, Circuit Judges,
and Cameron McGowan CURRIE, United States District Judge for
      the District of South Carolina, sitting by designation.



Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Traxler and Judge Currie concurred.


                             COUNSEL

ARGUED: Anthony Douglas Martin, Greenbelt, Maryland, for
Appellant. Michael R. Pauze, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Mary-
land, for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Greenbelt, Maryland, for Appellee.
2                      UNITED STATES v. RAMOS
                              OPINION

WIDENER, Circuit Judge:

   The defendant, Raul Castillo Ramos, after a nearly year-long inves-
tigation, was convicted in the distribution of crack cocaine as well as
firearms offenses. He now appeals his convictions. Finding no error,
we affirm. We contribute to the ongoing discussion among the cir-
cuits regarding the definition of "cocaine base" under 21 U.S.C.
§ 841.

                                   I.

   The government initially learned of and began to target the defen-
dant, Raul Ramos, through an informant known by his code name
"Smokey." Smokey was paid by the government from time to time for
his services, apparently on a fairly regular basis. Smokey contacted
Ramos and, between April 2003 to February 2004, repeatedly pur-
chased crack cocaine from the defendant.

  After a number of drug purchases from Ramos, Smokey’s case
agent, Special Agent Kate Dowd, asked him to inquire into the pur-
chase of firearms from Ramos. Smokey did as requested, and Ramos
eventually sold Smokey his personal firearm, as well as a second that
had the firing pin removed.

   As a result of this investigation, Ramos was indicted by a grand
jury in an eight-count indictment. In this indictment, counts ONE,
THREE, FOUR, FIVE, and SEVEN charged that Ramos had "know-
ingly, intentionally, and unlawfully distribute[d]" a quantity "of a
mixture or substance containing a detectable amount of cocaine base,
commonly known as crack, a Schedule II narcotic controlled sub-
stance." Count EIGHT charged possession with intent to distribute the
same. Each of these were alleged violations of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B). Additionally, counts two and six charged Ramos
with violations of 18 U.S.C. § 924(c)(1)(A)(i), alleging that he know-
ingly used a firearm during and in relation to a drug trafficking crime.

   Ramos’ trial began on November 16, 2004. At the close of the gov-
ernment’s case, Ramos moved for a judgment of acquittal, arguing
                      UNITED STATES v. RAMOS                        3
that the government failed to produce evidence that the substance he
sold was crack cocaine rather than some other form of cocaine base.
The district court denied this motion. At the close of evidence, Ramos
requested a jury instruction on entrapment. The district court denied
that instruction.

   The trial concluded on November 18, 2004, when the jury con-
victed Ramos on all counts. He was sentenced to 40 years in prison
plus a sentence of supervised release. Ramos appeals, and we affirm.

   Before proceeding, we emphasize that the special verdict form was
commendably thorough. The jury answered 15 questions, going not
only to guilt or innocence, but also to the quantities of cocaine base
involved. Neither Ramos nor the government takes any exception to
any fact-finding of the jury. So those answers are unimpeached.

                                 II.

  Ramos’ first assignment of error is

    THERE WAS A VARIANCE BETWEEN THE PROOF
    OFFERED AT TRIAL AND THE CHARGES CON-
    TAINED IN THE INDICTMENT AS RELATED TO THE
    DISTRIBUTION OF COCAINE. Br. p. 7.

Ramos’ sentence of 40 years was five years each on drug counts
ONE, THREE, FIVE, SEVEN, AND EIGHT; 10 years on Count
FOUR; concurrent sentences; five years on the first gun count (Count
TWO); and 25 years on the second gun count (Count SIX), the sen-
tences on both gun counts, TWO and SIX, to be served consecutively
to the sentences on the six counts previously mentioned. J.A. 236.
Each of these eight sentences was the minimum required by the stat-
utes.

   Ramos argues that the evidence is that the drugs involved in each
of the drug counts was "cocaine base," and the government should
have been required to prove that the cocaine base in question was
crack cocaine and not some other form of cocaine base. This is argued
because Ramos was sentenced under 21 U.S.C. § 841(b)(1)(A)(iii)
4                      UNITED STATES v. RAMOS
instead of under § 841(b)(1)(A)(ii). The sentence under (iii) is greater
than the sentence under (ii) and is awarded when the drugs involved
are described as "contain[ing] cocaine base." The lesser sentence
under (ii) includes other forms of cocaine, but not cocaine base.

   Ramos’ position is not well taken for several reasons. First, the
indictment was for distributing or possessing "a mixture or substance
containing a detectable amount of cocaine base, commonly known as
crack." The statute, § iii, provides in terms for sentencing for the sub-
stance "which contains cocaine base" and is not for some other sub-
stance. The inclusion in the indictment of the phrase "commonly
known as crack" is surplusage, which does not vitiate the indictment
and may be ignored. E.g., Ford v. United States, 273 U.S. 503, 602
(1927); Gambrell v. United States, 276 F.2d 180 (6th Cir. 1960). That
rule is not new. Beale’s Criminal Pleading and Practice, §§ 110, 111
(1898). That the parties and the district court obviously and correctly
treated the phrase as surplusage is shown, for example, by the
unobjected-to special verdict form for each of the six drug counts
which do not mention crack cocaine in terms or otherwise:

    How do you find the defendant Raoul Castillo-Ramos, as to
    Count _____ (distribution of cocaine base) of the indict-
    ment? [or possession with intent to distribute cocaine base]

    Guilty ______        Not Guilty ______

   At trial, the government introduced an expert in chemistry, Dr.
Charles Matkovich, who testified without contradiction that the sub-
stance involved in the drug counts was "cocaine base." And, if that
were not enough, the substance involved in each of the distribution
drug counts, ONE, THREE, FOUR, FIVE, and SEVEN, was identi-
fied by ATF Special Agents, and by Ramos himself in Count EIGHT,
in terms, as either "crack" or "crack cocaine." At the conclusion of the
testimony of Dr. Matkovich, the defendant moved for a judgment of
acquittal "with respect to the cocaine," and this on the ground there
are several forms of cocaine base, but there was no testimony from
Dr. Matkovich that the substance involved was crack cocaine, a form
of cocaine base. We are of opinion the district court correctly denied
the motion, if, for no other reason, than that the ATF agents and,
indeed, the defendant himself as to Count EIGHT, had identified the
                       UNITED STATES v. RAMOS                          5
type of drug involved as either "crack" or "crack cocaine." Indeed, the
district court, as a part of the jury instructions, referred to cocaine
base as crack.

   Along this same line, Ramos claims relief from his sentence
because of an Apprendi/Booker-type error in that the jury did not find
that the substance involved was crack cocaine, which he argues sub-
jected him to the greater punishment of (iii) rather than that of (ii).
There is no merit in this argument because Ramos was sentenced to
the lowest sentence the statute permitted on each conviction, therefore
there was no elevation of his sentence beyond that required by the
jury verdict.

   On the narrow question of whether or not a variance has occurred,
Ramos is also not entitled to relief. "When the evidence at trial differs
from what is alleged in the indictment, then a variance has occurred."
United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996). In this case,
the indictment alleged cocaine base. The statute involved required
cocaine base. The evidence from Dr. Matkovich was that the samples
consisted of cocaine base. The jury found distribution and presence
of cocaine base. Thus, there was no variance.

                                  III.

  The second assignment of error of Ramos is

    THE TRIAL JUDGE ERRED BY FAILING TO
    INSTRUCT THE JURY THAT THEY WERE REQUIRED
    TO MAKE A SPECIFIC FINDING THAT THE APPEL-
    LANT DISTRIBUTED CRACK COCAINE AS OPPOSED
    TO SOME OTHER FORM OF COCAINE BASE.

   Because there was no objection to the jury charge and to the form
of the special verdict mentioned above, for Ramos to succeed in his
argument there must have been plain error on the part of the district
court. We are of opinion there was not error at all, much less plain
error.

  The argument of Ramos is that there have been some constructions
6                         UNITED STATES v. RAMOS
of the sentencing statute involved which confine the enhanced sen-
tencing under § iii to a finding that the drug must be crack cocaine,
rather than merely cocaine base as required in the statute. The district
court did not sentence under the Guidelines, rather it imposed the stat-
utory minimum sentences for each of the eight crimes committed.1
We are of opinion that the district court correctly charged the jury in
the unobjected-to form of special verdict, and that the finding of the
jury that the substance involved was cocaine base was sufficient to
support the § iii sentence.

   We are of opinion that no further inquiry is necessary than a refer-
ence to the statutory text. Congress provided that enhanced penalties
would apply to "cocaine base." 21 U.S.C. § 841(b)(1)(A)(iii). At no
time did Congress use the term "crack" in the statute, despite being
aware of the term. We agree with the Second Circuit that

        [w]hile we believe that Congress contemplated that "cocaine
        base" would include cocaine in the form commonly referred
        to as "crack" or "rock" cocaine, Congress neither limited the
        term to that form in the plain language of the statute nor
        demonstrated an intent to do so in the statute’s legislative
        history. Congress used the chemical term "cocaine base"
        without explanation or limitation.

United States v. Jackson, 968 F.2d 158, 162 (2d Cir. 1992). In reach-
ing this conclusion, we are supported by a number of our sister cir-
cuits. Accord: United States v. Medina, 427 F.3d 88, 92 (1st Cir.
2005); United States v. Barbosa, 271 F.3d 438, 466-67 (3d Cir. 2001);
United States v. Butler, 988 F.2d 537, 542-43 (5th Cir. 1993); United
States v. Easter, 981 F.2d 1549, 1558 (10th Cir. 1992). But see United
States v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994); United
States v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004).2
    1
     The government does not appeal the sentence imposed, indeed it
joined in the request for minimum sentence on Counts TWO and SIX.
   2
     Ramos relies on the case of Brisbane, which is simply contrary to the
Jackson case, which we follow. He does not depend on our case of
United States v. Fisher, 58 F.3d 96 (4th Cir. 1995), which agreed in part
with the Jackson case, that the heavier penalty was carved out for the
                        UNITED STATES v. RAMOS                          7
   For the reasons just expressed, we are of opinion there was no error
in the jury instructions, or the form of special verdict, much less plain
error, and that the assignment of error is without merit.

                                   IV.

  The third assignment of error is

     THE TRIAL JUDGE ERRED BY REFUSING TO GIVE
     AN INSTRUCTION ON THE DEFENSE OF ENTRAP-
     MENT AS REQUESTED BY THE DEFENDANT. Br.
     p.14.

  Ramos’ entrapment argument as it relates to the fact of convictions
only concerns itself with the sale of the guns mentioned in Counts
TWO and SIX.

  An entrapment defense has two elements: (1) government induce-
ment of the crime and (2) the defendant’s lack of predisposition to
engage in the criminal conduct. United States v. Daniel, 3 F.3d 775,
778 (4th Cir. 1993).

   We review de novo a district court’s decision to deny a criminal
defendant a jury instruction on entrapment. United States v. Phan,
121 F.3d 149, 154 (4th Cir. 1997). Generally, "a defendant is entitled
to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor." Mat-
thews v. United States, 485 U.S. 58, 62 (1988). However, the district
court performs a threshold inquiry and determines whether there is
sufficient evidence for a reasonable jury to determine that there was

"particularly harmful form of cocaine known as ‘cocaine base’ or
‘crack,’" thus equating cocaine base and crack. Fisher, 58 F.3d at 99. But
Fisher also related that "‘crack’ cocaine . . . is expressly separately
addressed in clause (iii)." Fisher, 58 F.3d at 99. Subsequent to Fisher,
we have treated cocaine base and crack interchangeably. See United
States v. Eura, 440 F.3d 625, 627 (4th Cir. 2006). We follow here the
Fisher reasoning which equates cocaine base with crack, as does Jack-
son.
8                       UNITED STATES v. RAMOS
entrapment before it gives an entrapment instruction to the jury.
United States v. Hsu, 364 F.3d 192, 199 (4th Cir. 2004). Solicitation
of the crime alone is not sufficient to grant the instruction, as that "is
not the kind of conduct that would persuade an otherwise innocent
person to commit a crime." Hsu, 364 F.3d at 200.

   Ramos’ argument going to his guilt-entrapment defense relates
only to his weapons convictions, and is based on his contention that
he was the subject of government scrutiny due only to his sales of
drugs. Thus, he argues, there is no evidence that he was predisposed
to use or sell firearms. This argument is foreclosed by our precedent.
Predisposition is not limited only to crimes "specifically contem-
plate[d]" by the defendant prior to government suggestion, but
encompasses decisions to commit the crime that is "the product of his
own preference and not the product of government persuasion." Hsu,
364 F.3d at 198 (quoting United States v. Osborne, 935 F.2d 32, 38
(4th Cir. 1991)). "[W]hen government agents merely offer an oppor-
tunity to commit the crime and the defendant promptly avails himself
of that opportunity, an entrapment instruction is not warranted."
United States v. Harrison, 37 F.3d 133, 136 (4th Cir. 1994).

   The evidence presented at trial demonstrates that the government
did not induce Ramos to act; instead, it shows that Ramos was a will-
ing participant in the firearms sales. For example, after first refusing
to part with his own personal weapon, Ramos volunteered to acquire
a different firearm. That Ramos took several weeks to procure the
weapon for the informant does not negate the fact that he readily vol-
unteered to do so as soon as the request was made by the government.
As a result, we find that Ramos’ claim that he was an entrapped inno-
cent party is "completely unbelievable," Phan, 121 F.3d at 153, and
hold that the district court properly denied giving an entrapment
instruction with respect to the gun sales. The district court found that
there was no showing that Ramos was indisposed to selling arms until
suggested by the government, and we agree.

                                   V.

    The last assignment of error that we consider is:

      THE APPELLANT WAS THE VICTIM OF SENTENC-
      ING ENTRAPMENT. Br. p.15.
                       UNITED STATES v. RAMOS                        9
  Ramos’ contention is that
    [t]he quantity of drugs involved would have been much less
    but for the government agent seeking ever greater amounts
    of cocaine with each transaction. Given that scenario, the
    Appellant should not have faced punishment on the gun
    counts and should only have been sentenced on the quantity
    of drugs that was sold in the first transaction occurring on
    April 7 2003. Br. p.15
   We have disposed of above the defendant’s argument on the gun
counts. With respect to the sentencing, we considered a nearly identi-
cal contention in United States v. Jones, 18 F.3d 1145 (4th Cir. 1994).
We considered in Jones that the real claim was "whether the govern-
ment could ever engage in conduct not outrageous enough so as to
violate due process to an extent warranting dismissal of the govern-
ment’s prosecution, yet outrageous enough to offend due process to
an extent warranting a downward departure with respect to a defen-
dant’s sentencing." Jones, 18 F.3d at 1154. We rejected the conten-
tion in Jones in these words. "We find it not outrageous for the
government to continue to purchase narcotics from willing sellers
even after a level of narcotics relevant for sentencing purposes has
been sold." Jones, 18 F.3d at 1155. We follow Jones and "decline to
adopt a similar rule that would require district courts to speculate as
to the motives of, or to ascribe motives to, law enforcement authori-
ties. Due process requires no such ruminations." Jones, 18 F.3d at
1155.
   The record in this case does not even suggest that it was outrageous
for the government to continue to purchase narcotics from Ramos
even after a level of narcotics relevant for sentencing purposes had
been sold.
  The assignment of error claiming sentencing entrapment is without
merit, and we so hold.
  We have covered the assignment of error called No. V on p.15 of
Ramos’ brief.
  The judgment of the district court is accordingly
                                                         AFFIRMED.
