                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         AUG 27 1997
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 97-1008
                                                  (D.C. No. 96-CR-253-B)
 TROY LAMONT HOLLOWAY,                                   (D. Colo.)

           Defendant - Appellant.


                               ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges. **


                Troy Lamont Holloway appeals from his sentence for attempted

possession of cocaine base in violation of 21 U.S.C. §§ 844(a) and 846. Our

jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

       Mr. Holloway pled guilty to a single-count information charging him with

“attempt to possess more than 5 grams of a mixture or substance containing a


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
detectable amount of cocaine base (commonly known as ‘crack cocaine’ or

‘crack’)” and was sentenced to 60 months of imprisonment. See Fed. R. Crim. P.

11(e)(1)(C). On appeal, he raises one issue: “[w]hether [s]entencing was

improper because the government did not affirmatively show that the cocaine

derivative that was seized was of such a nature to qualify for application of the

‘crack’ sentencing guidelines.” See U.S.S.G. § 2D1.1(c).

      We review the district court’s factual findings for clear error and its

application of the Sentencing Guidelines de novo. United States v. Kissick, 69

F.3d 1048, 1051 (10th Cir. 1995). After reviewing the record, we hold that the

district court’s finding that the substance was crack cocaine was not clearly

erroneous and that the court correctly applied the Sentencing Guidelines.

      Mr. Holloway specifically pled guilty to attempted possession of crack

cocaine. The district court was entitled to rely upon that admission. See, e.g., 2

R. 10-14, 21-24. Mr. Holloway cites United States v. James, 78 F.3d 851 (3d

Cir.), cert. denied, 117 S. Ct. 128 (1996), for the proposition that the government

retains the burden to show that the substance at issue is crack even after the

defendant enters a plea of guilty. James is distinguishable because the only

references to “crack cocaine” in that case were made by the prosecutor, while “the

indictment, the defendant, and the court at the plea colloquy sp[oke] in terms of

cocaine base.” Id. at 856. In contrast, the substance at issue in this appeal was


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described as “cocaine base (commonly known as ‘crack cocaine’ or ‘crack’)”

throughout the proceedings. See, e.g., 1 R. 2; 2 R. 12, 21-22. The district court

also relied upon Mr. Holloway’s admissions, recorded in the presentence report,

that he had been addicted to crack cocaine since his early twenties and that he

usually smoked three to four grams of crack each day. 3 R. 12-13. The court’s

finding is further supported by Mr. Holloway’s letters of mitigation, describing

himself as a crack addict. Id.

      Mr. Holloway argues that the district court incorrectly applied the enhanced

penalties for crack-related crimes because sodium bicarbonate was not present in

the substance found in his possession. Note (D) to the Drug Quantity Table of the

guidelines provides that:

      “Cocaine base,” for the purposes of this guideline, means “crack.”
      “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, rocklike form.

U.S.S.G. § 2D1.1(c), Note (D). Mr. Holloway reads this definition to require that

any substance identified as “cocaine base” must be shown to contain sodium

bicarbonate before it may be treated as “crack” for sentencing purposes.

      Notes or commentary to the sentencing guidelines are considered binding

authority unless either violative of the Constitution or a federal statute, or clearly

inconsistent with the guideline the commentary purports to explain. Stinson v.

United States, 508 U.S. 36, 45 (1993). Therefore, we must construe the

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Guidelines’ use of the term “cocaine base” in accordance with the definition set

out in Note D. Because Mr. Holloway’s interpretation would require us to ignore

the word “usually” in that definition, we reject it.

      We interpret the qualifier “usually” in the phrase “usually prepared . . .

with sodium bicarbonate” as an acknowledgment that other methods of crack

preparation exist and that not all forms of “cocaine base” need contain sodium

bicarbonate to qualify as crack for sentencing purposes. Indeed, it appears that

the method which uses sodium bicarbonate is the least sophisticated and yields the

lowest purity. See James, 78 F.3d at 856-57; United States v. Fulton, 960 F.

Supp. 479, 494 (D. Mass. 1997). Although the laboratory report does not indicate

the presence of sodium bicarbonate in the cocaine base tested, the district court

was correct to apply the enhanced penalties for crack-related crimes to Mr.

Holloway’s case.

      AFFIRMED.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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