                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 4 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                     No. 98-6224
                                                 (W. District of Oklahoma)
LARRY BURNETT, also known as                      (D.C. No. CR-96-58-M)
Christopher Simmons, also known as
Larry Miller,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Circuit Judge, EBEL, and MURPHY, Circuit Judges.


      Oklahoma City police, acting on a tip, searched Larry Burnett and his half-

sister Katrice Glass after they arrived on a flight from Los Angeles. They found

5.9 kilograms of cocaine base in Glass’ bag. Significant circumstantial evidence

linked Burnett thereto. A jury convicted Glass of possession with intent to

distribute, and Burnett of aiding and abetting her. This court affirmed Glass’


      *
       This order and judgment is not binding precedent, except under the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.
conviction, but reversed Burnett’s, holding that the district court had violated his

rights by admitting evidence of Glass’ post-arrest comments inculpating him. See

United States v. Glass, 128 F.3d 1398, 1402–05, 1410 (10th Cir. 1997) (applying

rule of Bruton v. United States, 391 U.S. 123 (1968)). On remand, a jury

convicted Burnett of the same offense, and the court sentenced him to almost 25

years’ imprisonment. He appeals, alleging ten errors. This court has jurisdiction

under 28 U.S.C. § 1291. Because the district court’s only error lay in admitting

evidence of Burnett’s prior crack use, and that error was harmless, we affirm.

      I.     FACTS AND PROCEEDINGS

      Four Oklahoma City police detectives, including Bo Leach and David

Rivers, met two DEA agents at Oklahoma City’s airport. The agents described a

man and woman suspected of smuggling drugs on a flight from Los Angeles. The

tip was based on an airport drug-interdiction agent’s observation of the two, and

on when and how they had bought their one-way tickets. The detectives went to

the gate to await the flight.

    Soon after it arrived, Burnett got off. Rivers and another detective followed

him, noting that he walked alone, had no bag, and looked back several times,

sometimes stopping to do so. He left the airport without picking up a bag and

stood outside. Meanwhile, Leach and another detective followed Glass, who had

been one of the last passengers off the plane. She had two bags. She left the

airport and stood outside near Burnett.


                                          -2-
    Detective Rivers identified himself to Mr. Burnett and asked to see his ticket

and identification. Burnett showed him a one-way ticket from Los Angeles, paid

in cash, and a California driver’s license, both in the name “Larry Miller.” Rivers

then patted Burnett down for drugs, finding a few grams of what Burnett promptly

admitted to be marijuana. Rivers arrested him.

    Detective Leach, meanwhile, approached Ms. Glass, who let him search her

bags. One held not women’s clothing, but men’s underwear and socks. Nestled

among them were twelve bars of a tan, caked substance, each in a plastic baggie

wrapped tightly with clear tape and tucked into a sock. Leach concluded that the

substance was crack, and arrested Glass.

    The detectives took Burnett and Glass to separate offices. They then found

that Burnett had a baggage-claim check. They retrieved the bag, which held

men’s shirts and pants, but no underwear or socks.

    Burnett told Rivers he had come to Oklahoma to visit his grandmother, Ruthy

Maye Simmons. He said she might pick him up at the airport, but later said she

was senile; he did not answer Rivers’ query how, if senile, she could pick him up.

Burnett said he worked for a wrecker company in Los Angeles, but could not

recall its name or phone number or any of his coworkers’ names. He also gave a

birthdate that proved false. When Rivers told him police had found a large

amount of drugs on Glass, and asked if he knew her, Burnett said he did not. He

claimed never to have seen her before the flight.


                                           -3-
    Leach later questioned Burnett and wrote out a statement. Burnett gave an

address for Ruthy Maye Simmons that proved nonexistent. He asserted again that

he had never met Glass. Admitting the marijuana was his, he said, “I smoke

marijuana daily, but I haven’t smoked coke for over a year.” He signed the

statement as “Larry Miller.”

    Police testing revealed that the tan, caked substance was cocaine base, and

recovered one identifiable fingerprint, which matched Burnett’s. The print was

near the serrated end, on the adhesive side, of one of the pieces of tape wrapped

around the baggies of cocaine.

    Glass eventually told police that she and Burnett were half-siblings, and that

Simmons was their grandmother, but was dead. See Glass, 128 F.3d at 1402.

She also confessed, as Leach recounted at the first trial, that “‘she had knowingly

transported the narcotics along with [Burnett] to Oklahoma City.’” Id.

    The government tried Burnett and Glass together. See id. Glass did not

testify, but Leach recounted her comments. See id. at 1402, 1404. The jury

convicted her of possession with intent to distribute, and Burnett of aiding and

abetting her. See id. at 1402. This court reversed Burnett’s conviction, holding

that the court had violated his constitutional right to confront witnesses against

him by admitting Glass’ comments about their sibling relationship and his guilt,

and that the error was not harmless beyond a reasonable doubt. See id. at

1402–05.


                                         -4-
    On remand, Burnett stipulated that Glass is his half-sister. The prosecutor

used the above evidence, except Glass’ comments that Burnett was guilty and that

Simmons was dead. A jury convicted Burnett of aiding and abetting. The court,

upon finding the cocaine base to be crack and Burnett’s role in the offense not to

have been minor, sentenced him to 292 months’ imprisonment.

      II.    DISCUSSION

      A.     Challenges to the Conviction

      1.     Rule 404(b) Evidence

      Burnett’s written statement to police admitted: “I smoke marijuana daily,

but I haven’t smoked coke for over a year.” Rule 404(b) bars admission of

“[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person

in order to show action in conformity therewith.” Fed. R. Evid. 404(b). The

court nonetheless denied without comment Burnett’s request to redact the

“smok[ing] coke” remark from the statement. The government concedes that the

court thereby abused its discretion, but deems the abuse harmless, stressing the

remark’s brevity and exculpatory purpose, the lack of reference to it at trial, and

the substantial evidence of guilt.

      A nonconstitutional error is harmless if, “after pondering all that happened

without stripping the erroneous action from the whole,” this court is “sure that the

error did not influence the jury, or had but very slight effect.” Kotteakos v.

United States, 328 U.S. 750, 764–65 (1946). The inquiry is not “whether there


                                          -5-
was enough to support the result, apart from the . . . error. It is rather, even so,

whether the error itself had substantial influence. If so, or if one is left in grave

doubt, the conviction cannot stand.” Id.; see also O’Neal v. McAninch, 513 U.S.

432, 435, 437–38 (1995) (“By ‘grave doubt’ we mean that, in the judge’s mind,

the matter is so evenly balanced that [the judge] feels . . . in virtual equipoise as

to the harmlessness of the error.” (explicating Kotteakos standard)). This court

must review the entire record “‘without benefit of such aids as presumptions or

allocated burdens of proof’” to determine if we can be sure that the “smok[ing]

coke” comment affected the jury very slightly or not at all. O’Neal, 513 U.S. at

437 (quoting Roger J. Traynor, The Riddle of Harmless Error 26 (1970)).

      Harmlessness depends on the context in which improper evidence is

admitted, and how it was used at trial. See Glass, 128 F.3d at 1403 (citing Bond

v. Oklahoma, 546 F.2d 1369, 1376 (10th Cir. 1976)). The court admitted the

“smok[ing] coke” comment as part of Burnett’s statement. Leach testified that he

wrote the statement and Burnett read and signed it as “Larry Miller.” The

prosecutor then offered it as an exhibit. In a sidebar, counsel for Burnett

unsuccessfully asked the court to redact the comment. No one, however, ever

read or alluded to the coke reference in the jury’s presence. The prosecutor only

used other parts of the statement to show Burnett’s dishonesty. The jury heard

opening arguments, five witnesses’ testimony, and closing arguments, all focused




                                           -6-
only on the day of Burnett’s arrest, with no hint of his prior cocaine use. The

written statement, however, did go to the jury room.

      The weight of proper evidence in a case also helps determine the risk that

improper evidence substantially affected a jury. See, e.g., United States v.

Wilson, 107 F.3d 774, 786 (10th Cir. 1997). As noted above, the Glass panel

deemed the properly admitted evidence against Burnett not overwhelming.

See 128 F.3d at 1404. It summarized the evidence as showing that Burnett flew

with Glass and repeatedly looked over his shoulder after leaving the plane; had

luggage holding only pants and shirts, while Glass’ bag held men’s underwear and

socks; apparently lied about visiting his grandmother; addressed Glass by a

nickname and told her everything would be all right; and had left a fingerprint on

a piece of the tape found around the cocaine. See id. at 1403–04. The panel

discounted all but the last fact as evincing at most that Burnett traveled with

Glass. See id. at 1404. It deemed the fingerprint “ambiguous,” as it could show

either that Burnett had taped up the crack, or that he had previously used the tape

for unrelated “innocent activities,” leaving a print at the end of the roll. Id.

      The properly admitted evidence on remand was stronger. The parties

stipulated that Burnett and Glass were half-siblings, and the prosecution stressed

Burnett’s repeated denials that he had ever seen her before. The Glass panel, by

contrast, held that the district court had erred by admitting Glass’ statements that

she and Burnett were half-siblings. See 128 F.3d at 1404–05. Those comments


                                          -7-
were the only evidence establishing that relationship, and thus showing that

Burnett’s denials that he knew Glass were patently false. See id. In addition, the

Glass panel’s view of the evidence does not control this appeal because the error

in Glass was constitutional, requiring this court to apply a stricter harmlessness

standard. See id. at 1402–03.

      While the circumstantial case against Burnett in the second trial was not

overwhelming, it was very strong. It combined the fingerprint and the two bags’

complementary clothing; Burnett’s suspicious conduct before the police

approached him; and his false exculpatory statements after his arrest.

      The suspicious pre-arrest activity comprises carrying a false ID and acting

as if he was not traveling with Glass. Burnett’s counsel argued that Burnett had

denied knowing Glass not because he was conscious of his guilt, but to shield her

from the consequences of his marijuana possession, or because police had told

him of the cocaine in her bag. No such innocent motive, however, can explain his

deceptive conduct before his arrest. The innocent explanations, moreover, are not

compelling, and were presented to the jury only fleetingly. While the fingerprint

is ambiguous, and could reflect an innocent coincidence, the contents of the

luggage reinforce the guilty interpretation. The crack’s placement among what

were almost surely Burnett’s clothes could also be a coincidence, done without

his knowledge. A pair of such coincidences, however, strains credulity. It seems

very likely that the jury focused on that pair of suspicious coincidences, and saw


                                         -8-
Burnett’s deceptive pre-arrest conduct and false post-arrest statements as favoring

the guilty rather than the innocent explanation thereof.

       Most significantly, the prosecution never mentioned Burnett’s reference to

cocaine use. The short trial focused instead on the circumstantial physical

evidence, and on how the circumstantial behavioral evidence showed a

consciousness of guilt, and made the “innocent coincidences” view of the physical

evidence not just unlikely, but wholly implausible. This court thus concludes that

it is unlikely that the jury, during its brief deliberations, shifted its focus to rely

more than very slightly, if at all, on Burnett’s passing reference to prior cocaine

use.

       2.     Sufficiency of the Evidence

       For the reasons discussed above, we conclude that the evidence as a whole,

with all reasonable inferences drawn in the government’s favor, sufficed to allow

a reasonable jury to find Burnett guilty beyond a reasonable doubt. See, e.g.,

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (explaining sufficiency standard).

       3.     Other Specific Items of Evidence

       a.     Lost or Destroyed Evidence.

       Burnett challenges under the best-evidence rule the admission of testimony

describing documents that the police destroyed before the first trial, i.e., the

“Larry Miller” driver’s license and airplane ticket, and the baggage-claim ticket.

See Fed. R. Evid. 1002 (requiring use of original to prove content of writing).


                                            -9-
We review for abuse of discretion. See, e.g., United States v. Tome, 61 F.3d

1446, 1449 (10th Cir. 1995).

      Originals are not required if they “are lost or have been destroyed, unless

. . . in bad faith.” Fed. R. Evid. 1004. Rivers testified that the police property

room asked the investigating officers whether to retain the documents, and

“someone then inadvertently [told] them that [they] could be destroyed.” Burnett

has never alleged that this inadvertence was in bad faith. In United States v.

Shoels, the government offered photographs of forged checks and testimony that

the originals had been in an FBI agent’s briefcase when it was stolen. See 685

F.2d 379, 384 (10th Cir. 1982). Noting simply that “[b]ad faith was not alleged

or found,” we held the court had not abused its discretion by admitting the photos.

See id; see also Chandler v. United States, 318 F.2d 356, 356–57 (10th Cir. 1963)

(similar). While the excuse in Shoels was more compelling, and the substitute

evidence more reliable, the same rationale applies in this case: nothing suggests

the police destroyed the documentary evidence in bad faith.

      Burnett also challenges testimony about the luggage and clothes, which

were also destroyed. The best-evidence rule does not ordinarily govern such

nondocumentary evidence. See Chandler, 318 F.2d at 357; 6 Weinstein’s Federal

Evidence, §1001.03[02], at 1001–10 (2d ed. 1997). We instead analyze its loss or

destruction under a fair-trial rubric. See United States v. Monaco, 700 F.2d 577,

580 (10th Cir. 1983) (“[T]he crucial question is whether the defendant could


                                         -10-
receive a fair trial without the missing evidence.”); United States v. Baca, 687

F.2d 1356, 1360 (10th Cir. 1982). Burnett did not object to testimony about the

luggage and clothing. We thus review for plain error. See United States v.

Olano, 507 U.S. 725, 732–35 (1993). Burnett must “make a specific showing of

prejudice.” Id. at 734. He cannot do so, for he gives no reason to doubt that the

testimony correctly described the lost evidence or to think that his inability to

examine the evidence made his trial unfair. Cf. Baca, 687 F.2d at 1361 (relying

on lack of reason to doubt testimony, despite recognizing defendant’s interest in

independently testing alleged heroin).

      b.     Alias Evidence

      Burnett claims the district court abused its discretion by admitting

testimony about the lost evidence because it was substantially more prejudicial

than probative. See Fed. R. Evid. 403. He confuses the prejudice caused by any

probative evidence, however, with the “unfair prejudice” addressed by Rule 403.

That rule limits use of evidence with “‘an undue tendency to suggest decision on

an improper basis, commonly . . . an emotional one.’” United States v. Martinez,

938 F.2d 1078, 1082 (10th Cir. 1991) (quoting Fed. R. Evid. 403, advis. comm.

note) (alteration ours). The luggage testimony plainly had no such tendency.

      Jurors may react hostilely to use of an ID and airline ticket in a false name.

Cf. Glass, 128 F.3d at 1408 (noting potential unfair prejudice of alias evidence).

While such evidence could provoke jurors to dislike Burnett as a liar,


                                         -11-
“[p]ossession of a false driver’s license is not the kind of offense that is so likely

to arouse the jury’s passions against the defendant that they are likely to convict

him of . . . possession with intent to distribute cocaine on [that basis alone].”

United States v. Kloock, 652 F.2d 492, 495 (5th Cir. Unit B Aug. 1981).

      Burnett’s use of a false ID and name tended to prove a key issue: whether

he knew of the crack before police told him of it. See Glass, 128 F.3d at 1408

(noting that use of alias to hide identity from police tends to show consciousness

of guilt); cf. United States v. Scarborough, 128 F.3d 1373, 1379–80 (10th Cir.

1997) (noting claim that “jury might infer from . . . [false] license that defendant

had been involved in illegal activities long before the crime in question,” but

affirming admission by noting simply that license tended to prove “key issue at

trial”). The prosecutor never hinted that the false ID showed a criminal history,

as opposed to guilt and fear of detection for the charged offense. Burnett cites no

opinion holding the admission of relevant alias evidence to have exceeded the

particularly broad discretion enjoyed by district courts under Rule 403. See

United States v. Burch, 153 F.3d 1140, 1144 (10th Cir. 1998) (noting breadth of

discretion). Nor is this such a case.

      c.     DEA Tip and Ticket Profiling

      Burnett challenges as hearsay the police testimony about the DEA tip that

initiated the investigation, and as more unfairly prejudicial than probative

testimony about the ticket profiling from which that tip arose.


                                          -12-
      While Burnett’s counsel alluded before trial to the hearsay character of

testimony about the tip, he never objected to it. We thus review for plain error.

See Martinez, 76 F.3d at 1150. Out-of-court statements “‘are not hearsay when

offered for the limited purpose of explaining why a Government investigation was

undertaken.’” United States v. Wilson, 107 F.3d 774, 780 (10th Cir. 1997)

(quoting United States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987)). Leach

testified briefly about the tip, without recounting incriminating out-of-court

statements, in order to establish why police were awaiting Glass’ and Burnett’s

plane. It was not plain error to admit his testimony.

      Burnett did object, in an unusual way, to the ticket-profiling testimony. His

counsel first raised the topic. While cross-examining Detective Rivers, he asked,

“What really happened that morning is you received some information about a

profile . . . that certain individuals fit the general characteristics of someone . . .

worth talking to; is that right?” Rivers replied that “I believe it was more [that]

the ticket met . . . [a] ticket profile.” When the prosecutor began to raise the

topic on re-direct, Burnett’s counsel objected. At the bench, he said that he

expected the prosecutor to elicit testimony about when Burnett and Glass had

bought their tickets, how they had paid, and how they had acted; he objected on

hearsay and Rule 403 grounds. But the prosecutor rejoined that “[a]ll I’m going

to ask is what is a ticket profile. [Rivers] will give a generic description.” And




                                           -13-
so he did, discussing very briefly the basic criteria of such a profile. 1 He never

testified as to how Burnett’s and Glass’ tickets fit a profile, explained evidence in

light thereof, or hinted that, because Burnett’s ticket fit a profile, he was more

likely guilty. Neither the prosecutor nor any other witness subsequently

mentioned the issue.

      Burnett thus opened the door, and the prosecution responded modestly.

This court has long held that rebuttal examination “‘may embrace any matter . . .

tending to elucidate, modify, explain, contradict, or rebut [prior] testimony,’” and

has left admission of such evidence, “particularly when the defendant ‘opens the

door’ to the subject matter,” to the district court’s “sound discretion.” Burch, 153

F.3d at 1144 (quoting Leeper v. United States, 446 F.2d 281, 288 (10th Cir. 1971)

(intermediate quotation omitted)). Rivers’ testimony explained a topic Burnett

had left hanging on cross-examination. The government did not, as Burnett now

argues, use profile evidence to prove guilt, 2 or use police witnesses as experts to

tell the jury what to infer from the evidence. The court did not abuse its broad




      1
       He explained that a “ticket profile” meant “a ticket that was purchased,
one, in cash, a lot of times . . . 30 to 45 minutes prior to the flight leaving. It will
be cash one way . . . [o]r sometimes . . . cash and . . . a quick turnaround. Say
they come from L.A. to Oklahoma City, going back two hours later, whatever.
Those are the items that we look for.”
      2
       We thus do not address Burnett’s argument against such use of profile
evidence. Cf. United States v. McDonald, 933 F.2d 1519, 1523 (10th Cir. 1991)
(reserving judgment on issue).

                                          -14-
discretion to control the scope of examination by allowing Rivers’ brief testimony.

      4.     Jury Instruction on Punishment

      Burnett argues that the court abused its discretion by refusing to instruct

the jury about the sentence he would receive if convicted. He claims without

citing authority that, by making such calculations reasonably certain, the

guidelines have displaced prior caselaw, which not only did not require

instructions on punishment, but made it error to give them. See Rogers v. United

States, 422 U.S. 35, 40 (1975); see also Shannon v. United States, 512 U.S. 573,

579 (1994) (affirming Rogers in recent, yet non-Guidelines, case). We have held,

however, that “nothing in the sentencing guidelines . . . suggest[s] that [they]

were intended to alter the usual rule reserving punishment issues for the

sentencing court.” United States v. Pena, 930 F.2d 1486, 1492 (10th Cir. 1991).

      5.     False-Exculpatory-Statements Instruction

      The court instructed the jury that it could infer guilt from false exculpatory

statements “knowingly and voluntarily made by defendant upon being informed

that a crime had been committed or upon being accused of a crim[e].” Burnett

argues that it thereby erred. He reasons that, as he was arrested for marijuana

possession, his lies only served to deny, and thus only tended to imply guilt of,

that crime. The government rejoins that Burnett plainly lied to distance himself

from the cocaine, not the marijuana: he told most of his lies after he had freely

admitted possessing the marijuana in his pocket, and told the most important one,


                                         -15-
that he did not know Glass, after police had told him about the cocaine. A jury

could reasonably infer consciousness of guilt about the cocaine from some if not

all of Burnett’s lies. His arguments only show that such inferences were not

inevitable; they do not show that the court erred in instructing the jury that it

could draw them.

      B.     Sentencing Issues

      1.     Role-in-the-Offense Reduction

      Burnett appeals the court’s refusal to reduce his offense level because he

was less culpable than Glass. A court has discretion to reduce the offense level of

a convict who played a minor role in a crime. See U.S. Sentencing Guidelines

Manual § 3B1.2 (1997) [“U.S.S.G.”]. Its exercise of this discretion is very case-

specific. See id., cmt. Background. A convict has the burden of proving his or

her entitlement to a § 3B1.2 reduction. See, e.g., United States v. Lockhart, 37

F.3d 1451, 1455 (10th Cir. 1994). This court reviews the district court’s fact

findings for clear error, and its exercise of discretion in applying the guidelines to

those facts “with due deference.” United States v. James, 157 F.3d 1218, 1219

(10th Cir. 1998); see also 18 U.S.C. § 3742(e) (stating “due deference” standard).

      The court reasoned as follows in denying Burnett a minor-role reduction:

      Defendant does not qualify as a minor participant . . . . He was
      traveling with . . . Glass. His . . . fingerprint was found on the tape
      which packaged one of the bundles of the cocaine . . . . Further,
      there is no evidence that . . . Burnett[] lacked . . . knowledge or
      understanding of the activities in this case. [Though] found guilty of

                                          -16-
      the crime of aiding and abetting . . . he may under the law be treated
      as a principal for the offense for which he was convicted.

      Burnett makes two arguments on appeal. One is that, because he was only

convicted for aiding and abetting, his role was necessarily minor. The other is

that the court’s ruling contradicts its prior finding, in denying Glass a § 3B1.2

reduction, that she was “clearly the more culpable of the two.”

      Burnett cites no authority for a rule that a court must or usually should

deem minor or minimal the role of one convicted only for aiding and abetting. Cf.

United States v. Ortiz, 966 F.2d 707, 717 (1st Cir. 1992) (“Considering that role-

in-the-offense determinations are ordinarily factbound, and that Nunez was

charged only with aiding and abetting . . ., we do not believe that the sentencing

court was legally required to label him a minor or minimal participant . . . .”)

Such a rule would be in tension with the aiding-and-abetting statute, which makes

“[w]hoever commits an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission . . . punishable as a principal.”

18 U.S.C. § 2(a). The guidelines, in addition, make the offense level for aiding

and abetting “the same level as that for the underlying offense.” U.S.S.G.

§ 2X2.1. Those rules subject an aider-and-abettor “to the same punishment as the

principal.” United States v. Sarracino, 131 F.3d 943, 946 (10th Cir. 1997).

      Burnett’s second argument does not focus on the facts any more than his

first. He relies on the court’s finding, in sentencing Glass, that she was “clearly

the more culpable of the two.” That finding echoed her PSR. Even assuming that

                                         -17-
the finding somehow bound the court in Burnett’s case, it did not say that Glass

was substantially more culpable. See U.S.S.G. § 3B1.2, cmt. Background (saying

section applies to convict whose part in offense “makes him substantially less

culpable than the average participant”); United States v. Williamson, 53 F.3d

1500, 1524 (10th Cir. 1995) (suggesting but not holding court may require convict

to prove he or she was “substantially” less culpable than average participant).

This court has held that a convict “is not entitled to a reduction under 3B1.2

simply because he is the least culpable among several participants.” Lockhart, 37

F.3d at 1455 (citing United States v. Caruth, 930 F.2d 811, 815 (10th Cir. 1991)

(“[T]he Guidelines permit courts not only to compare a defendant’s conduct with

that of others in the same enterprise, but with the conduct of an average

participant in that type of crime.”)).

      Burnett has never meaningfully tried to carry his burden of proving that his

role made him substantially less culpable than Glass, and/or the average person

convicted of this type of crime. There is simply no evidence of his and Glass’

respective roles in the scheme to smuggle crack to Oklahoma City, except that she

carried the bag holding the crack; it was bundled in his socks; and his fingerprint

was found on a piece of the tape used to wrap it, while hers was not. Cf. United

States v. Sukiz-Grado, 22 F.3d 1006, 1009 (10th Cir. 1994) (“[T]o weigh relative

culpability, ‘evidence must exist of other participants and their role in the

criminal activity.’” (quoting United States v. Arredondo-Santos, 911 F.2d 424,


                                         -18-
425 (10th Cir. 1990))). Burnett never suggests what substantially less culpable

role he played. He only notes the lesser amount of evidence that he, as compared

to Glass, was involved at all. The jury, though, found that he was involved. The

lack of evidence of his and Glass’ relative roles makes it impossible to say the

court erred in concluding that his was not minor.

       2.     Proof that the Cocaine Base Was “Crack”

       Burnett’s brief argues that, because the police did not test the cocaine base

for sodium bicarbonate, the court erred in treating it as “crack” for sentencing

purposes. This court has since foreclosed that argument. See United States v.

Brooks, 161 F.3d 1240, 1248–49 (10th Cir. 1998) (rejecting claim that, because

note to U.S.S.G. § 2D1.1(c) says crack is “usually prepared by processing cocaine

hydrochloride and sodium bicarbonate,” government must prove alleged “crack”

contains sodium bicarbonate). Brooks does, however, require the government to

prove by a preponderance of the evidence that any given cocaine base is “crack”;

it simply holds that sodium bicarbonate is not a necessary element of that proof.

See id.; see also United States v. Cantley, 130 F.3d 1371, 1379 (10th Cir. 1997).

We will treat the determination that a substance was “crack” as a factual finding

and review it for clear error. 3


       3
        This court has never set a standard for reviewing a determination that a
substance was “crack” for purposes of § 2D1.1(c). We review drug-quantity
calculations for clear error. See, e.g., United States v. McIntyre, 997 F.2d 687,
710 (10th Cir. 1993). In McIntyre, we recited that rule but went on to review for
clear error a determination not of the quantity but of the type of drug. See id.; see

                                         -19-
      Leach testified he had been in the drug-interdiction unit for nearly four

years and had bought many drugs undercover. He showed familiarity with crack

by detailing how it is distributed and used. He testified that when he saw the

substance in Glass’ bag, his experience led him to conclude that it was “crack

cocaine.” Police chemist Richard Dawes discussed his testing of the substance

and the nature of cocaine base. He testified that the substance in Glass’ bag was

cocaine base, and verified his written report, which was admitted. He stressed,

though, that as a chemist he was not qualified to say if the cocaine base fit the

legal or street definition of “crack.” He repeated that caveat at the sentencing

hearing, but he did agree that the substance was “like many other . . . substances

brought to [him] and identified by the police officers as crack cocaine[.]”

      Dawes’ testimony and report establish that the substance was “cocaine

base,” and suggest but do not establish that it was “crack” for purposes of

§ 2D1.1(c). Leach, however, testified directly that the substance was “crack

cocaine,” based on direct examination in light of his experience. Cf. Cantley, 130

F.3d at 1378 (relying in part on police officer’s identification of substance as

crack); United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997) (holding




also United States v. Cantley, 130 F.3d 1371, 1378 (10th Cir. 1997) (noting “clear
error” review of factual findings and referring interchangeably to proof of
“amounts and types of controlled substances”); United States v. Jones, 159 F.3d
969, 982 (6th Cir. 1998) (stating “clear error” standard of review of finding
substance was crack); United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997)
(same).

                                         -20-
government “just barely” carried its burden by relying wholly on opinion

testimony of very experienced narcotics officer). The evidence thus suffices to

establish that the cocaine base was “crack” for purposes of § 2D1.1(c). Burnett

offered no contrary evidence, besides the possible absence of sodium bicarbonate.

He has not suggested any other type of cocaine base that it could have been. Cf.

United States v. Munoz-Realpe, 21 F.3d 375, 377 (11th Cir. 1994) (holding liquid

cocaine base not “crack”); U.S.S.G. app. C, amend. 487 (giving coca paste as

example of non-crack cocaine base); Cantley, 130 F.3d at 1379 (recognizing

burden is on government to prove substance was crack, but noting that convict

“has produced no evidence whatsoever to show that the substances were not

crack”). The court did not clearly err in its finding.

      III.   CONCLUSION

      Burnett has identified only one harmless error at his trial, and no error in

his sentencing. This court thus affirms his conviction and sentence.

                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




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