 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 17, 2007              Decided January 8, 2008

                         No. 06-3051

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

                     RICARDO T. LACEY,
                        APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                      (No. 04cr00456-01)


    Dennis M. Hart, appointed by the court, argued the cause
and filed the brief for appellant.

     Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese, III and Elizabeth Trosman,
Assistant U.S. Attorneys.

    Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

    Opinion for the Court filed by Circuit Judge SENTELLE.
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     SENTELLE, Circuit Judge: Appellant Ricardo Lacey was
indicted for several offenses including distribution of cocaine
base and theft. During the trial proceedings he moved the court
for judgment of acquittal on the theft charge. The court denied
the motion. He was subsequently convicted of, inter alia, the
charges of theft and distribution of cocaine base, the latter for
which he was sentenced to a mandatory minimum term. We
affirm the conviction for theft but reverse the conviction for
distribution of cocaine base and remand for sentencing on the
lesser included offense of distribution of cocaine.

                          Background

      During a sting operation conducted by the Metropolitan
Police Department an undercover officer made arrangements
with appellant Ricardo Lacey to buy illicit drugs from him on
four separate occasions. On one of these occasions Lacey sold
to the officer what was later determined to be 60 grams of
cocaine, allegedly cocaine base. On the last occasion the
undercover officer arranged to meet Lacey to make another
purchase of drugs for $11,500. At the appointed time Lacey and
the officer met in the officer’s unmarked vehicle. Upon entering
the vehicle Lacey placed a plastic bag purporting to contain
illicit drugs onto the back seat. The officer then handed $5,000
to Lacey, telling him that the rest of the money was in the trunk.
When the officer exited the vehicle, ostensibly to retrieve the
money from the trunk, Lacey exited with him. At that point
Lacey was placed under arrest. The undercover officer later
determined that the plastic bag Lacey placed on the back seat
purporting to contain illicit drugs in fact contained only vinegar
and trading cards.

     Lacey was subsequently indicted on multiple counts. In
particular for this appeal, Lacey was indicted for unlawful
distribution of 50 grams or more of cocaine base in violation of
                                3

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) (Count Two), and
for first degree theft in violation of D.C. Code §§ 22-3211 and
22-3212(a) (Count Ten) for wrongfully obtaining the $5,000.

     A jury trial was held in district court. At the conclusion of
the government’s case Lacey moved for judgment of acquittal.
Concerning Count Ten, theft, during discussions on the motion
the subject of asportation as an element of theft was raised, with
Lacey arguing to the court that this element was missing because
the $5,000 was taken away from him as soon as he was arrested
after exiting the undercover officer’s vehicle. The court,
however, after stating that asportation does not have a time
requirement, concluded that asportation was established when
Lacey exited the vehicle with the $5,000 still in his possession.
The court denied the motion for judgment of acquittal as to
Count Ten.

     The jury subsequently found Lacey guilty on four counts,
including Counts Two and Ten. At the sentencing hearing the
probation officer told the court that a 120 month mandatory
minimum sentence applied to Count Two, and the court
consequently imposed that sentence. The court also imposed a
concurrent term of eight years for theft of the $5,000, as well as
concurrent sentences on other counts.

    Lacey now appeals, challenging the district court’s ruling
on asportation and its imposition of a 120 month mandatory
minimum sentence for Count Two.

                            Analysis

   Asportation. The District of Columbia theft statute, D.C.
Code § 22-3211, states in pertinent part:

    (b) A person commits the offense of theft if that person
                                  4

     wrongfully obtains or uses the property of another with
     intent:

               (1) To deprive the other of a right to the property
               or a benefit of the property, or

               (2) To appropriate the property to his or her own
               use or to the use of a third person.

      Asportation is “[t]he act of carrying away or removing
(property or a person).” BLACK’S LAW DICTIONARY (8th ed.
2004). Lacey argues that asportation is an element of theft,
although not expressly set forth in the statute. In support of this
contention, Lacey puts forth various arguments: that the
“definitional direction” of the statute contains that legal concept;
that when considering an earlier version of the theft statute we
wrote that asportation was an element of theft, citing United
States v. Barlow, 470 F.2d 1245, 1250 (D.C. Cir. 1972); that in
other jurisdictions asportation remains an element of theft, see,
e.g., United States v. Thordarson, 646 F.2d 1323, 1335 n.22 (9th
Cir. 1981); and that the theft statute is analogous to the D.C.
robbery statute, D.C. Code § 22-2801, which also does not
expressly set forth an asportation element but which was meant
to codify the common law which does have an asportation
element, see Neufield v. United States, 118 F.2d 375, 390 (D.C.
Cir. 1941). The government, in response to Lacey’s asportation
contention, argues that there is no support for his contention
either on the face of the theft statute, in its legislative history, or
in the case law. In particular the government notes that in
Moorer v. United States, 868 A.2d 137, 143 n.11 (D.C. 2005),
the D.C. Court of Appeals, citing D.C. Code § 22-3211, stated
that “[t]heft does not have an asportation element.”

     While it is likely that the Moorer decision is dispositive of
the issue, there was sufficient evidence of asportation by Lacey
                                5

even if asportation is an element of the D.C. theft statute.
Asportation, as an element of other crimes, has been found by
the D.C. Court of Appeals to be satisfied by minimal movement.
See, e.g., Newman v. United States, 705 A.2d 246, 264 (D.C.
1997) (asportation element of robbery satisfied by “minimal
movement of the property,” i.e., defendants’ directions to
victims to throw their money to the floor); Simmons v. United
States, 554 A.2d 1167, 1171 n.9 (D.C. 1989) (asportation
element of taking property without right satisfied by “slightest
moving of an object from its original location,” i.e., defendant’s
removal of purse from victim’s shoulder). Here, the undercover
officer testified during the trial that while in the vehicle he
handed Lacey $5,000, that he then exited the vehicle in order to
get the rest of the money out of the trunk, and that Lacey exited
the vehicle with him still holding onto the $5,000. We
consequently agree with the government that even if Lacey is
correct that asportation is an element of theft, a reasonable jury
could have found on the evidence before it, taken in the light
most favorable to the government, that this element was satisfied
by Lacey’s movement of the $5,000 when he exited the vehicle.
See United States v. Adewani, 467 F.3d 1340, 1343 (D.C. Cir.
2006) (rational trier of fact could have found elements of crime
after considering record evidence in light most favorable to the
government).

    Sentencing. Lacey contends that the district court’s
imposition of a 120 month mandatory minimum sentence for
Count Two was in error. The government also makes this
contention, asserting that the case should be remanded for
resentencing. We agree. The 120 month mandatory minimum
sentence was imposed on Lacey for distributing 50 grams or
more of cocaine base in violation of 21 U.S.C. §
841(b)(1)(A)(iii). In United States v. Brisbane, 367 F.3d 910,
914 (D.C. Cir. 2004), we held that “a conviction premised on
‘cocaine base’ under 21 U.S.C. § 841 cannot stand unless the
                                6

evidence establishes that the cocaine at issue was crack or that
it was smokable.” United States v. Baugham, 449 F.3d 167, 171
(D.C. Cir. 2006).1 Here, during discussions on instructions to be
submitted to the jury, the trial court in fact determined that no
testimony had been presented indicating that the cocaine base at
issue was smokable or that it was crack. Accordingly, Lacey’s
conviction for distributing cocaine base under §
841(b)(1)(A)(iii) cannot stand. By convicting Lacey of
distributing cocaine base under § 841(b)(1)(A)(iii), “the jury
necessarily concluded that the drugs were some form of
cocaine.” Brisbane, 367 F.3d at 915. Because distribution of
cocaine is a lesser included offense of distribution of cocaine
base under § 841(b)(1)(A)(iii), and because we “have the power
to modify a criminal judgment to reduce the conviction to that
of a lesser included offense,” the district court is instructed “to
enter a judgment of conviction for distributing ‘cocaine’ and to
sentence accordingly.” Id. at 914, 915 (citation and some
internal quotation marks omitted).

                           Conclusion

    For the foregoing reasons, the conviction of Ricardo Lacey
for Count Ten, theft, is affirmed; the case is remanded for re-
sentencing, consistent with this opinion, on Count Two.




        1
         In Brisbane and in Baugham “we left unresolved whether
proof of smokability alone would suffice.” Baugham, 449 F.3d at
171.
