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USA v.FELIPE PADILLA, No. 06-4370.  Felipe Padilla pleaded guilty to one count of knowingly distributing 121.3 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). After finding that the substance in question was cocaine base in the form of crack, the district court sentenced Padilla to 327 months’ imprisonment, a sentence above the advisory guidelines sentence of 240 months.
On April 18, 2005, Padilla filed a motion asking for an evidentiary hearing to determine the nature of the controlled substance  which the district court denied as unnecessary.  On January 4, 2006, the government informed Padilla that the Cook County Sheriff’s Police Department Laboratory had inadvertently destroyed the narcotics related to Padilla’s case.
Padilla pleaded guilty in a blind plea to Count II of the indictment.  Padilla admitted that he distributed 121.3 grams of cocaine, but specifically did not admit that the substance was cocaine base in the form of crack cocaine. The district court, finding that the drugs were cocaine base in the form of crack, and that an upward departure from the sentencing guidelines range was warranted, sentenced Padilla to 327 months’ imprisonment and ten years’ supervised release.
At sentencing after a guilty plea, the government has the burden of proving drug type by a preponderance of the evidence.  As we have held, “[a]ll crack is cocaine base but not all cocaine base is crack.” United States v. Edwards, 397 F.3d 570, 571 (7th Cir. 2005). The term “cocaine base,” for purposes of 21 U.S.C. § 841(b), borrows from the definition contained in U.S.S.G. § 2D1.1, which defines “cocaine base” as “crack.” U.S.S.G. § 2D1.1(c), Note D; see United States v. Morris, 498 F.3d 634, 644 (7th Cir. 2007) (citing Edwards, 397 F.3d at 573-76). As we noted in Morris, “[t]his definition distinguishes between both powder cocaine (cocaine hydrochloride) and cocaine bases and also between crack cocaine and other forms of cocaine base.” 498 F.3d at 644. Therefore, for purposes of sentencing under § 841(b), the evidence must show that the substance at issue is crack, and not just cocaine base. Edwards, 397 F.3d at 576-77.

Sentencing judges have wide latitude in the types of evidence they may consider in making factual determinations affecting a sentence. See United States v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005). At Padilla’s sentencing hearing, the government relied primarily on the testimony of Agent Gomez [who testified that] during a conversation with Padilla regarding a proposed drug transaction, Padilla offered to sell Agent Gomez crack cocaine. Agent Gomez asked Padilla how much longer it would be for the drugs to arrive. Padilla responded that the drugs were “in the cooking process, it was drying at the time. . . . That was the reason for the wait.” Agent Gomez, who had made approximately twenty undercover crack cocaine purchases, understood the term “drying” to mean the final process of cooking crack cocaine.  [When Agent Gomez smelled the drugs that he was given, he] noted that the drugs had a “very, very strong, pungent smell,” consistent with the smell of crack cocaine.

The government introduced two laboratory reports on the chemical analysis of the drugs. The second analysis reflected the presence of cocaine base. Neither lab report tested for the presence of sodium bicarbonate, an ingredient commonly used in preparing crack.
The district court concluded that the drugs in question were indeed crack: “based on the testimony of [Agent Gomez]’s observations, what he saw and heard, and the second lab report, I conclude that there is sufficient reliable evidence for a reasonable jury to conclude that the controlled substance was crack cocaine base.”
While crack is usually prepared by processing cocaine hydrochloride and sodium bicarbonate, Edwards, 397 F.3d at 572, we have never mandated that a substance must contain sodium bicarbonate in order to be crack. United States v. Lake, 500 F.3d 629, 634 (7th Cir. 2007).
We have held that the government can prove a substance is crack by offering testimony from people familiar with the drug, United States v. Anderson, 450 F.3d 294, 301 (7th Cir. 2006), including veteran police officers and forensic chemists, United States v. Linton, 235 F.3d 328, 329-30 (7th Cir. 2000), as well as an informant’s belief that he was purchasing crack, United States v. Booker, 260 F.3d 820, 824 (7th Cir. 2001). See also United States v. Buchanan, 362 F.3d 411, 413 (7th Cir. 2004); United States v. Branch, 195 F.3d 928, 933-35 (7th Cir. 1999). Though this is a close case, we find no reversible error in the district court’s determination that Padilla possessed crack.
Padilla suggests that the government failed to meet its burden because the destruction of the narcotics precluded the introduction of the drugs at the hearing. We note that the destruction of the drugs was indeed regrettable.  The government need not present the substance in the courtroom during the sentencing hearing in order to meet its burden that the substance is crack. See Lake, 500 F.3d at 634 .
Our deferential standard of review in this matter compels our conclusion that there was no clear error.

We note, however, that the evidence distinguishing crack cocaine from other forms of cocaine base in this case was undeniably thin.

We reiterate that in cases such as this the government must produce evidence to show that the substance was specifically crack, and not just any form of cocaine base. See Morris, 498 F.3d at 644; Edwards, 397 F.3d at 576-77. Given the disparity between crack and other cocaine bases, and in the wake of Kimbrough and the amended crack Sentencing Guidelines (discussed more fully below), it is all the more critical that the government meet its burden of proving the drugs to be crack cocaine as distinct from other forms of cocaine base.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

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