                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4455



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WILLIAM JUSTIN MARSHALL,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:06-cr-00562-CMC)


Submitted:   December 14, 2007            Decided:   January 8, 2008


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Katherine E. Evatt, Assistant Federal Public Defender, Aileen P.
Care, Research & Writing Specialist, Columbia, South Carolina, for
Appellant.   Reginald I. Lloyd, United States Attorney, Leesa
Washington, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             William Marshall pled guilty to conspiracy to possess

with intent to distribute five grams or more of cocaine base

(“crack”), in violation of 21 U.S.C. § 846 (2000), and possession

with intent to distribute five grams or more of crack, in violation

of 21 U.S.C. § 841(a)(1) (2000).               The district court sentenced

Marshall to concurrent 168-month terms on both counts.                   Marshall

appealed, challenging only his sentence.              We affirm.

             Marshall first contends 6.68 grams of crack he sold

during a controlled buy should have been calculated as powder

cocaine      for    sentencing   purposes;      he    asserts     the   substance

transacted during the controlled buy had been reduced to a powder

form   and    was    therefore   not    “lumpy”      and   “rocklike,”    as   the

Sentencing Commission has described crack.                 Because Marshall did

not raise this contention in district court, we review for plain

error.    See United States v. Olano, 507 U.S. 725, 731-32 (1993).

Under the plain error standard, Marshall must show:                (1) there was

error; (2) the error was plain; and (3) the error affected his

substantial rights.        Id. at 732-34.         When these conditions are

satisfied, we may exercise discretion to notice the error only if

the error “seriously affect[s] the fairness, integrity or public

reputation     of    judicial    proceedings.”         Id.   at   736   (internal

quotation marks omitted).




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     The sentencing guidelines define crack as “a form of cocaine

base, usually prepared by processing cocaine hydrochloride and

sodium bicarbonate, and usually appearing in a lumpy, rocklike

form.” U.S. Sentencing Guidelines Manual § 2D1.1(c) (Drug Quantity

Table), note (D) (2006) (emphasis added).               Here, a Government

chemist determined the substance Marshall sold was “crushed crack

cocaine,” and Marshall fails to demonstrate the substance was not

crack.   We therefore find no plain error in the treatment of this

substance as crack for sentencing purposes.

            Marshall also challenges the sentencing calculation’s

inclusion of crack found pursuant to a warrantless search of a

vehicle.    At the sentencing hearing, the Government conceded the

vehicle was not located on the property for which a warrant

authorized a search nor on the curtilage of the property described

in the search warrant.        Nevertheless, the district court found

Marshall lacked standing to challenge the search of the vehicle, as

Marshall    disavowed   ownership,   a     possessory   interest,     or   even

knowledge of the vehicle on the evening of the search.                      See

Rakas v. Illinois, 439 U.S. 128, 148-49 (1978) (holding defendant

must establish legitimate expectation of privacy in vehicle to

challenge    use   of   evidence   found    during   search   under    Fourth

Amendment).    Furthermore, in a pre-sentencing guidelines case, we

held “the disadvantages of applying the exclusionary rule at

sentencing are large, the benefits small or non-existent, and . . .


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the rule should therefore not be extended” to the sentencing

context.   United States v. Lee, 540 F.2d 1205, 1212 (4th Cir.

1976); see also United States v. Nichols, 438 F.3d 437, 441 (4th

Cir. 2006) (noting other circuit courts “relied largely on the same

reasoning we articulated in Lee” in post-guidelines context).    We

therefore find no error in the use of this evidence in calculating

Marshall’s sentencing guidelines range.

           Accordingly, we affirm Marshall’s sentence.   We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                           AFFIRMED




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