In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2432

United States of America,

Plaintiff-Appellant,

v.

Tuan Steward,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-30215--G. Patrick Murphy, Chief Judge.

Argued November 9, 2000--Decided June 5, 2001


  Before Fairchild, Easterbrook, and Manion,
Circuit Judges.

  Fairchild, Circuit Judge. Steward was
charged with possession with intent to
distribute cocaine base, crack, in
violation of 21 U.S.C. sec. 841(a)(1).
The jury acquitted him of that charge,
but found him guilty of the lesser
offense of possession of crack. The court
sentenced him to 21 months’ imprisonment.
The government had sought imprisonment in
the range of 110 to 137 months and
appealed. We affirm.

  A citizen of Alton reported to police
that someone, later identified as Demond
Spruill, had been dealing in drugs all
afternoon, operating a black Ford Escort.
When a customer arrived in the area he
would enter the car with Spruill, the
vehicle would proceed a couple of blocks
while the transaction apparently
occurred, and the passenger would then
exit the vehicle. Later police officers
made a traffic stop of the vehicle.
Spruill was the driver, and Steward the
passenger. Officer Rathgeb approached
from the driver’s side, and Officer Lane
from the front. Lane noticed that Steward
had a piece of yellow paper in his hand
and something else which he moved toward
his mouth. Lane ran to the passenger’s
side of the car, reached inside and
applied pressure to Steward’s throat,
trying to get him to spit out the
substance. Steward dropped the yellow
piece of paper, and Lane saw him drop
something else from his left hand. On
cross-examination Lane testified that in
his experience it is common for people to
carry crack in a folded piece of paper
because they don’t want it to get pushed
into the bottom of their pocket. Officer
Rathgeb testified that he saw Steward
successfully swallow an object and drop a
yellow piece of paper. He saw Steward
drop a clear plastic baggy with his left
hand. It fell on the seat and later onto
the console. He later found that the
baggy contained three other plastic
baggies, each containing a substance he
believed to be crack cocaine. The parties
later stipulated that it contained 8
grams of crack.

  A government witness testified that 8
grams would amount to 40 doses and the
prosecutor argued that Steward had bought
40 doses of crack and that quantity was
evidence that he intended to sell it to
others. The same witness testified on
cross-examination that the three
individual packages contained smaller
rocks, and a purchaser could have picked
out his rock. Defense counsel argued that
Steward got into the car with Spruill,
who handed him the bag. Steward picked
out the rock he wanted and put it in his
little piece of paper. The police appear
and Steward puts the rock in his mouth to
get rid of it, and gives the bag back to
its owner, Spruill.

  The jury convicted of possession on a
verdict form referring to crack, but not
stating a quantity. As Judge Murphy
remarked at sentencing, the defense
theory was that Steward was a mere buyer,
a user, and "the jury thought that was
the case also."

  21 U.S.C. sec. 844(a) contains a number
of authorizations of terms of
imprisonment for simple knowing or
intentional possession of controlled
substances. These are not separated into
paragraphs. We have held that the third
sentence creates a separate crime of
possession of crack, which is not a
lesser included offense of possession
with intent to distribute a controlled
substance. United States v. Hill, 

, 808 (7th Cir. 1999). The
earlier sentences provide terms of
imprisonment for possession of controlled
substances which vary in length according
to prior convictions of drug offenses. If
applied to Steward, with apparently more
than two such convictions, the maximum
imprisonment would be 3 years. We note
that the court’s instruction concerning
the use of the verdict form as to the
lesser offense of possession of crack
appears to have been suggested by
defendant, the point that the form of
verdict should have called for a finding
on possession of a controlled substance,
rather than of crack, has not been argued
here, and it may well be that Steward
waived any such claim. The maximum term
for possession of a controlled substance
would be 3 years.

  Steward did argue at sentencing that
under the third sentence of sec. 844 the
amount of crack possessed should have
been charged and submitted to the jury.
Apprendi v. New Jersey, 

(2000), had not been decided at the time
of trial, but trial counsel relied on
Jones v. United States, 

(1999). Judge Murphy rejected the
argument that the amounts of crack set
forth in sec. 844 were elements of the
offense rather than sentencing factors.
Apprendi was decided before briefs were
filed on appeal, but appellate counsel
did not mention it or the Jones point in
his brief or at oral argument, except on
inquiry by members of the panel. We
consider a claim on the effect of
Apprendi waived.

  In paragraph 22 of the PSR, the
probation officer computed a base offense
level of 26 by assuming, incorrectly,
that Steward had been convicted of
possession of more than 5 grams of
cocaine base, and applying U.S.S.G. sec.
2D1.1. Together with Criminal History
Category V (not in dispute), this leads
to a sentencing range of 110-137 months.
There was clearly an error here in that
the Statutory Index for 21 U.S.C. sec.
844(a) leads to Guideline 2D2.1, which in
(a) provides a base offense level of 8 if
the substance is crack. Subsection
(b)(1), Cross References, provides that
"If the defendant is convicted of
possession of more than 5 grams of
[crack], apply sec. 2D1.1 . . . as if the
defendant had been convicted of
possession . . . with intent to
distribute." Although it is theoretically
possible that one could be convicted of
possessing 8 grams intending only
personal use, the proof and contention in
this case make it very clear, as the
trial judge recognized, that the jury
convicted Steward of possession of only
the small amount he swallowed. The 5-gram
condition for applying U.S.S.G. sec.
2D1.1 was clearly not met.

  In paragraph 17 of the PSR, the
probation officer stated "it appears that
the defendant’s relevant conduct involved
the possession of crack cocaine that he
swallowed (quantity unknown) and the
cocaine base in the form of crack cocaine
(8.0 grams) that he admittedly had in his
possession." Steward objected. The
government argued at sentencing that
Steward exercised control over the
package when he dropped it in an attempt
to hide it, and this was relevant
conduct. Judge Murphy made oral findings
that the defendant’s contact with the
drugs was momentary and that the
government has not shown by a
preponderance of the evidence that he
ever had possession of the entire amount.
He later made written findings that
Steward was merely purchasing the small
amount of crack which he put in his mouth
when the police approached. He noted
evidence that Steward was only one of
Spruill’s customers and found that
Steward possessed less than 1 gram of
crack.

  In this court, the government argued
again that Steward’s holding of the
package in his left hand, however
fleetingly, the resulting control over
it, and dropping it in hope of
concealment established possession of it.
Steward had cited United States v.
Kitchen, 

(7th Cir. 1995),
dealing with possession in the sense of
criminal culpability, and reversing a
conviction. Judge Murphy made several
oral references to comments in Kitchen
concerning lack of evidence "that the
drug transaction was in any sense certain
or complete." The government argues that
Judge Murphy’s finding that Steward did
not possess the 8-gram package was
clearly erroneous because these
references showed his belief that he
could not find possession without finding
ownership. Kitchen surely does not stand
for that proposition, and it is clear to
us that Judge Murphy did not base his
finding on it, but rather on his
conclusion that Steward held the package
only momentarily, and for the purpose of
selecting the crack he desired to
purchase.

  The probation officer included Steward’s
handling and dropping the 8-gram package
as relevant conduct. It is not clear
whether he understood that the jury had
convicted Steward of possession of less
than 5 grams. His reference to an
admission by Steward of possession of the
package could only be based on a highly
ambiguous reference by Steward to "that
dope." Neither the probation officer nor
government counsel explain how, where the
conviction was for possession of 5 grams
or less, the handling, or even
possession, of the 8-gram package would
factor into the computation of the base
offense level. U.S.S.G. sec. 2D2.1
clearly calls for a base offense level of
8 unless the defendant is convicted of
possession of more than 5 grams.
Presumably uncharged possession could
augment the drug quantity under U.S.S.G.
sec. 2D1.1(a)(3), after a conviction of
possession of more than 5 grams, but
nothing in the Guidelines suggests that
where the conviction is for 5 grams or
less, uncharged possession can be used to
make up the difference.

  The judgment is affirmed.