United States of America v. Larnell Devon Morrison, a/k/a "L" Larnell Devon Morrison

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-2652
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UNITED STATES OF AMERICA
v.
LARNELL DEVON MORRISON,
a/k/a "L"
Larnell Devon Morrison,
Appellant
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Appeal from the United States District Court
For the Middle District of Pennsylvania
D.C. No.: 00-cr-00119-01
District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit LAR 34.1(a) May 7, 2002
Before: NYGAARD, ALITO, and ROSENN, Circuit Judges.
(Filed: May 23, 2002)
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OPINION OF THE COURT
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ROSENN, Circuit Judge.
In November 2000, Larnell Devon Morrison pled guilty to possession with intent

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to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). At sentencing,
the District Court found certain of the controlled substance to be crack cocaine, and the
remaining to be powdered cocaine, and sentenced him to 136 months of imprisonment.
Morrison filed this timely appeal solely contesting the factual finding of the District Court
that certain of the controlled substance was crack cocaine. W e affirm.
I.
Because the parties are familiar with the facts, we recite only those essential for
our disposition. In September 1999, the Federal Bureau of Investigation and the Bureau
of Narcotics Investigation in the Office of the Pennsylvania Attorney General (BNI)
jointly commenced an investigation into drug trafficking around Harrisburg,
Pennsylvania. The BNI used a personal acquaintance of Morrison as a confidential
informant (CI). Between December 1999 and March 2000, the CI purchased crack
cocaine from Morrison on five different occasions, each involving varying grams of crack
cocaine. After the last controlled buy in March 2000, 117.7 grams of powdered cocaine,
as well as drug paraphernalia, were seized during the execution of a search warrant at
Morrison’s home.
Morrison pled guilty to a one count information of possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The District Court
found Morrison accountable for 217.7 grams of crack cocaine and 117.7 grams of

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powdered cocaine. Based on the above findings, Morrison’s sentencing range under the
Sentencing Guidelines was 121-151 months. The District Court sentenced him to 136
months of imprisonment. Morrison filed this timely appeal solely contesting the District
Court’s finding 217.7 grams of cocaine to be crack cocaine.
II.
The United States Sentencing Guidelines § 2D1.1 provides enhanced penalties for
a controlled substance conviction if the substance involved is cocaine base. It defines
cocaine base to be crack. U.S.S.G. § 2D.1.1, Note D to Drug Quantity Table. Crack “is
the street name for a form of cocaine base, usually prepared by processing cocaine
hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rock like form.”
Id. We have made clear that cocaine base as that term is used in the Sentencing
Guidelines is not merely any form of cocaine base, but a form of cocaine base referred to
as crack. United States v. James, 78 F.3d 851, 855-58 (3d Cir. 1996).
The District Court found 217.7 grams of cocaine to be crack cocaine, and the
defendant subject to the enhanced penalties. Morrison challenges that factual finding.
This Court reviews the District Court’s finding of fact for clear error. United States v.
Holman, 168 F.3d 655, 660 (3d Cir. 1999). Under the clear error standard, “[f]actual
findings are clearly erroneous if the findings are unsupported by substantial evidence,
lack adequate evidentiary support in the record, are against the clear weight of the

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evidence or where the district court has misapprehended the weight of the evidence.”
United States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997) (quoting Davin v. DOJ, 60
F.3d 1043, 1049 (3d Cir. 1995)). The District Court’s factual findings during sentencing
cannot be disturbed unless this Court is “left with a definite and firm conviction that a
mistake has been made.” Holman, 168 F.3d at 660.
During sentencing, “the character of the drug substance need not be shown
beyond a reasonable doubt, but only by a preponderance of the evidence.” Id. at 658
(emphasis added). To satisfy its burden, we have held that “the government must present
reliable and specific evidence that the substance in question is crack,” id., but the
Government need not provide chemical analysis nor is 100% certainty required in order to
satisfy the evidentiary burden. Id. at 660; United States v. Roberson, 194 F.3d 408, 417
(3d Cir. 1999); United States v. Dent, 149 F.3d 180, 190 (3d Cir. 1998).
During the sentencing hearing, the Government called two witnesses: (1) James J.
DiSarno, a forensic chemist with the DEA, and (2) Christopher Juba of the BNI. DiSarno
testified that all five samples he analyzed were cocaine base, but he could not conclude
whether the cocaine base was crack as is required for the enhanced penalties. Juba
testified that the CI used during the investigation of Morrison negotiated purchases for
only crack cocaine. Based on his own experience, he also testified that the purchase price
was consistent with crack cocaine. The purchased substance, he further testified, was in
the shape of a “cookie,” which he testified is consistent with crack cocaine. Lastly, he

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testified that all recorded conversation between Morrison and the CI involved a purchase
of crack cocaine.
Morrison testified that he manufactured the cocaine sold to the CI by beating the
cocaine with hammer, adding water and baking soda, and air drying it. However, he
testified that the substance he prepared did not ignite. Therefore, he contended, the
substance sold was not crack cocaine as defined in Note D. In rejecting Morrison’s
testimony, the District Court explained that the CI would not have repeatedly dealt with
Morrison if he thought the substance was not crack cocaine. Based upon the above
testimony, the District Court found that the seized substance was crack cocaine.
Morrison argues that the District Court erred because the chemist could not testify
that the cocaine base conformed to the Note D definition of crack. He argues that Juba’s
testimony that the substance looked like crack cocaine, and was sold as crack cocaine
does not cure the deficiency in the chemist’s testimony. Morrison admits that testimony
without any chemical analysis has been deemed sufficient, as in United States v. Roman,
to satisfy the evidentiary burden.
Notwithstanding the chemist’s inability to conclude from his laboratory analysis
that the substance he analyzed was the form of cocaine base referred to as crack, we see
no error by the District Court in its crack finding, especially in light of the deferential
standard of review and the preponderance of the evidence standard applicable during
sentencing. Despite a lack of testimony by the chemist on the form of the cocaine base,

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we held in Dent that when the chemist’s testimony was combined with the officer’s
testimony in that case, there was sufficient evidence to satisfy the Government’s burden
and to affirm the District Court’s factual finding that the substance was crack cocaine.
149 F.3d 180, 190 (3d Cir. 1998). Likewise in United States v. Holman, we held that a
chemist’s testimony that the substance was cocaine base, without identifying the form of
cocaine base, when supplemented with the testimony of two experienced detectives was
sufficient to conclude that the District Court did not clearly err. 168 F.3d 655, 658-60 (3d
Cir. 1999).
III.
For the foregoing reasons, the judgment of the District Court will be affirmed.

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TO THE CLERK:
Please file the foregoing opinion.
/s/Max Rosenn
Circuit Judge

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