                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 00-20218
                                     Summary Calendar



UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,
                                             versus

JOSÉ MARTINEZ,

                                                            Defendant-Appellant.
                  __________________________________________

                     Appeal from the United States District Court
                          for the Southern District of Texas
                             USDC No. H-99-CR-134-1
                  __________________________________________
                          July 23, 2001
Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*
       José Martinez appeals his conviction by a jury and the sentence imposed for

aiding and abetting and possession with intent to distribute more than 50 grams of

cocaine base or “crack”, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii)

and 18 U.S.C. § 2.



       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
      Martinez contends that insufficient evidence was presented to establish, for
sentencing purposes, that the substance involved was crack cocaine. The

undisputed evidence at trial more than adequately established that the substance

involved was crack cocaine. The record reflects the requisite evidence that the
substance at issue was crack. This contention is without merit.1

      Martinez further contends that his indictment was insufficient because it did

not allege that he “unlawfully” delivered the drugs. The indictment contains the

essential elements required to establish possession with intent to distribute. It is
sufficient.2 Martinez also asserts that the indictment failed to charge an offense
because cocaine base is not listed in the statute as a controlled substance. As we
heretofore have noted, “[a]ll cocaine base is cocaine, and all is a controlled

substance.”3 This contention is devoid of merit.
      Martinez finally contends that the district court erred by increasing his offense

level under U.S.S.G. § 3B1.1(c) based on his leadership role in the offense. The
record persuades that the trial court did not clearly err in assessing the two-level
increase for Martinez’s aggravating role.4

      The conviction and sentence are AFFIRMED.




      1
       United States v. Canada, 110 F.3d 260 (5th Cir. 1997).
      2
       United States v. Ortega-Reyna, 148 F.3d 540 (5th Cir. 1998).
      3
       United States v. Deisch, 20 F.3d 139 (5th Cir. 1994).
      4
       United States v. Valencia, 44 F.3d 269 (5th Cir. 1995).
                                              2
