United States of America, Plaintiff-appellee, v. Mickey Polk, Defendant-appellant, 139 F.3d 909 (9th Cir. 1998)

MEMORANDUM^* 

Mickey Polk appeals his 262-month sentence following his guilty pleas to two indictments charging him with possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (A). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

We review de novo the district court's interpretation of the Sentencing Guidelines. See United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir. 1996). We review the district court's application of the Sentencing Guidelines to the facts for an abuse of discretion. See id. We review the district court's findings of fact underlying a sentencing decision for clear error. See id. We review de novo the interpretation of the term "cocaine base" in 21 U.S.C. § 841(b) and U.S.S.G. § 2D1.1. See United States v. Shaw, 936 F.2d 412, 414-15 (9th Cir. 1991).

Polk contends that the district court erred by sentencing him pursuant to the guidelines for cocaine base because the government did not prove that the form of cocaine base possessed by Polk was crack cocaine. This contention lacks merit.

The Sentencing Guidelines provide enhanced penalties for offenses involving cocaine base compared to offenses involving cocaine. See U.S.S.G. § 2D1.1 (1995). The 1992 Guidelines contained different offense levels for cocaine and cocaine base but did not specifically list penalties for crack cocaine or define cocaine base .¹  See U.S.S.G. § 2D1.1 (1992). Prior to the 1993 amendments defining "cocaine base" as "crack," we concluded "that Congress and the Commission must have intended the term cocaine base to include crack." See Shaw, 936 F.2d at 416 (internal quotations omitted).

Here, Polk was charged with and pled guilty to possession with intent to distribute cocaine base. In its summary of evidence at Polk's plea hearings, the government stated that when Polk's apartment was searched, Polk admitted to using glass jars found by the officers for "cooking crack cocaine" and that lab results confirmed that items found in Polk's automobile contained crack cocaine. The district court asked Polk if the government's summary was "a correct statement of what you in fact did" and Polk answered "yes." It is not clear that the government was required to prove that the form of cocaine base possessed by Polk was crack cocaine. See U.S.S.G. § 2D1.1 (1992); Shaw, 936 F.2d at 416 (defining "cocaine base" as including "crack"). Even if the government had such a burden, Polk's responses to the government's summary of the evidence referring to crack cocaine were sufficient to meet that burden.

Polk also contends that the district court erred by failing to ensure that Polk read the presentence report prior to sentencing. We disagree because Polk failed to demonstrate that he was prejudiced. See United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994).

Finally, Polk's contention that the district court erred by enhancing his sentence for a prior felony offense pursuant to 21 U.S .C. § 851 because the prior offense was not prosecuted by indictment or waiver thereof lacks merit. See United States v. Espinosa, 827 F.2d 604 (9th Cir. 1987) (stating that 21 U.S.C. § 851 requires that the current offense, not the prior conviction, be prosecuted by indictment or waiver).

AFFIRMED.