In the

United States Court of Appeals
               For the Seventh Circuit

No. 06-2574

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

R OBERT S TEPHENSON,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 04 CR 243 B—Mark R. Filip, Judge.


    A RGUED A PRIL 30, 2007—D ECIDED F EBRUARY 17, 2009




 Before R OVNER, W OOD , and SYKES, Circuit Judges.
  R OVNER, Circuit Judge. Robert Stephenson appeals
his sentence for distribution of a controlled substance,
objecting to the enhanced penalty he received for dis-
tributing crack cocaine. He argues first, that the gov-
ernment failed to prove that he sold crack as opposed to
another form of cocaine, second that the enhanced penal-
ties for crack cocaine are unconstitutionally vague, and,
finally, that the district court had insufficient evidence
to include one kilogram of prior crack distribution as
relevant conduct. We affirm on each point.
2                                               No. 06-2574

  In 2001, the Drug Enforcement Administration (DEA)
targeted Stephenson in its ongoing investigation into
crack dealing by members of the Gangster Disciples street
gang in Evanston, Illinois. As part of the investigation, the
DEA employed a confidential source who had negotiated
crack deals with persons in the area before, including
Stephenson. The confidential source knew Stephenson
as a drug seller who dealt exclusively in crack cocaine.
  On July 17, 2001, after two phone calls arranging the
terms of the transaction, Stephenson and the confidential
agent met in a parking lot of an Evanston YMCA where
Stephenson sold the confidential source 36.6 grams of a
white chunky substance for $1,100. Both the DEA agent
and the confidential source visually identified the sub-
stance as crack, and field tests confirmed that the
powder contained some form of cocaine.
  Approximately two weeks later, the confidential source
re-contacted Stephenson and, after several phone calls
arranging the deal, the two met again. This time, the
confidential source purchased a plastic baggie con-
taining 57.7 grams of a hard, brownish tan chunky sub-
stance for $1,550. Again, both the DEA agent and the
confidential source identified the substance as crack and
field tests indicated that the product contained cocaine.
  DEA agents arrested Stephenson on November 5, 2001.
In a post-arrest interview, after being Mirandized,
Stephenson admitted that he was a crack dealer in the
Evanston, Illinois area. He revealed that he began pur-
chasing small amounts of crack in 1996, and eventually
began buying four and five ounce quantities. He estimated
No. 06-2574                                                  3

that he had purchased one kilogram of crack from one
particular seller over the course of a five to six year
period, ending in 2003. In a second meeting, again
after being Mirandized, Stephenson viewed a tape of the
August 2 drug sale and confirmed that he appeared in
the video selling crack.
  On January 13, 2005, Stephenson entered a blind plea to
counts one and two of the superseding indictment which
charged him with knowingly and intentionally distributing
crack cocaine in violation of 21 U.S.C. § 841(a)(1)—in excess
of five grams in count one and fifty grams in count two.
After a May 31, 2005 sentencing hearing, on June 2, 2006,
the district court sentenced Stephenson to 180 months on
counts one and two, to be served concurrently, a fine of
$1,000 and a five year term of supervised release for each
count.
  Stephenson appealed to this court alleging (1) that the
government failed to prove by a preponderance of the
evidence that Stephenson possessed crack cocaine as
opposed to another form of cocaine; (2) that the enhanced
penalties for crack cocaine are unconstitutionally vague;
and (3) that the district court erred by including one
kilogram of prior crack sales as relevant conduct.
  Stephenson’s primary strategy in this appeal is to cast
doubt on the government’s evidence that he sold crack as
opposed to another form of cocaine. Although recent
judicial and congressional actions have lowered some of
the sentences for drug crimes involving crack cocaine,
sentences for the sale of crack cocaine are still significantly
higher than those for other forms of cocaine, and this
4                                                    No. 06-2574

distinction obviously fuels Stephenson’s appeal.1 To
sentence a defendant under the enhanced penalty, the
government must prove by a preponderance of the evi-


1
   For example, effective November 1, 2007, the Sentencing
Commission altered the guidelines suggestions for crack
sentencing by reducing the base offense level associated with
each quantity of crack by two levels. See Amendments to the
Sentencing Guidelines for United States Courts, 72 Fed. Reg.
28571-28572 (2007). See also Kimbrough v. United States, 

, 569 (2007). The Sentencing Commission took such action
after its multiple attempts to persuade Congress to reduce or
eliminate the crack/powder disparity were rejected. Further-
more, last year the Supreme Court held that the advisory nature
of the Sentencing Guidelines applies to crack sentencing cases
such that it would not be an abuse of discretion for a district
court to conclude that the crack/powder disparity yields a sen-
tence greater than necessary to achieve the goals of the statute
at issue. 

. It is questionable whether
the changes announced in Kimbrough affect Stephenson,
as he appears to have put all his eggs in the “I sold cocaine and
not crack” basket. But see United States v. Padilla, 

,
774 (7th Cir. 2008) (“[defendant] did contest before the district
court and again on appeal whether the drugs in question were
crack. We can presume that [the defendant’s] primary purpose
in disputing the drug type was to avoid the harsh effects of the
crack sentencing disparity, since no other logical inference
exists. In so doing, [the defendant] preserved the issue, however
obliquely, of whether the district court could consider the 100:1
sentencing disparity in sentencing.”). In any event, at no time
while this appeal has been pending did Stephenson make
any argument regarding Kimbrough or the reasonableness of
his sentence in this court, and thus the argument is waived.
No. 06-2574                                                    5

dence that the substance at issue is crack, and not some
other form of cocaine base. United States v. Branch, 

, 934 (7th Cir. 1999). As we shall see, more than
ample evidence supports the government’s contention
that Stephenson sold crack cocaine, and we review such
a factual determination of the type of drugs involved in
an offense for clear error only. United States v. Linton,

, 329 (7th Cir. 2000).
   Given our sophisticated crime laboratories, it might
seem an easy task to determine whether a particular drug
is crack or another form of cocaine base, but no chemical
test can distinguish between crack and cocaine base. Crack
is merely one form of cocaine base—a form that arises as
the end result of one method of turning the salt form of
cocaine, cocaine hydrochloride (powder cocaine), back
into a base form. See United States v. Edwards, 

,
574 (7th Cir. 2005). Drug dealers alter the form of naturally
occurring cocaine to offer drug users their preferred
method of ingesting the chemical. Crack can be smoked,
but not snorted or injected; powder cocaine can be
snorted, but not smoked. 

Other methods
of converting cocaine hydrochloride into a base form
produce cocaine base that is not crack. See United States
v. Booker, 

, 491 (7th Cir. 1995). For example,
freebase cocaine, popular in the 1970s, is another form
of cocaine base, although one that has lost popularity



2
  For a more comprehensive explanation of the differences
between the various forms of cocaine, see 

-
91.
6                                                    No. 06-2574

due to its volatile and dangerous production methods. 

has rejected rigid definitions of crack, noting
that to employ such a rigid definition would invite those
in the drug trade to make minor changes in structure,
processing, or packaging to avoid the increased penalties
for selling crack cocaine. United States v. Abdul, 

, 479 (1997). Instead of applying a rigid definition, this
circuit has held that a sentencing judge must determine
whether a defendant sold “crack,” as those who buy
and sell in the market generally understand the term.

in this field are those who spend their
lives and livelihoods enmeshed with the drugs—users,
dealers, and law enforcement officers who specialize in
narcotics crimes. United States v. Kelly, 

, 364
(7th Cir. 2008); United States v. Bradley, 

, 596
(7th Cir. 1999) (“those who smoke, buy, or sell this stuff
are the real experts on what is crack.”)
  In this case the “experts” all agreed that Stephenson
sold crack and not some other form of cocaine to the
confidential source. The confidential source, a former
crack buyer and addict, readily identified the substance
as crack, and also noted that he had never bought any
drug other than crack from Stephenson.3 In fact, the
confidential source refused the DEA’s request that he
ask Stephenson for “crack, cooked or hard” because, as the
he explained, Stephenson was a crack dealer and only
sold crack. Presumably the confidential source was con-



3
  For ease of use, we will refer to the confidential source as “he”
although this may or may not reflect the actual gender of
the confidential source.
No. 06-2574                                               7

cerned that such an obvious reference to crack would
blow his cover as a government agent.
  The DEA agent who testified at Stephenson’s sen-
tencing hearing qualified as another expert in the field. At
the time that he testified, DEA Special Agent Steve
Moran had worked for the DEA for approximately eight
years and had seen hundreds of samples of crack cocaine.
See United States v. Gray, 

, 347 (7th Cir. 2005)
(agent who had been with the DEA for seven years and
previously had worked for five years as a narcotics
canine officer was qualified as expert in identifying
drugs). He testified that the price, appearance, pack-
aging, and manner of transaction were consistent with
crack cocaine.
  The defendant himself identified his wares as “crack.”
After his arrest, and after officers read Stephenson his
Miranda rights, the defendant agreed to speak to the
investigating officers and admitted that he was a “crack
cocaine dealer in Evanston, Illinois,” and described
several aspects of his crack business. Stephenson never
told the agents that he sold cocaine or cocaine base. In
his second post-arrest interview, after viewing a video of
one of his transactions, Stephenson again admitted that
he sold crack, referring to the drugs as “crack,” or
“cooked” or “hard”—slang terms for crack cocaine.
   At Stephenson’s plea hearing, the government set forth
its rendition of what the evidence would show if
presented at trial. In that recitation, the government
indicated that Stephenson had sold crack cocaine on two
separate occasions. It used the word “crack cocaine” no
fewer than six times in its presentation of the evidence,
8                                           No. 06-2574

after which time, the court engaged in the following
colloquy with the defendant:
    THE COURT: Mr. Stephenson, have you heard the
               statement of the prosecutor?
    STEPHENSON: Yes, sir.
    THE COURT: Is her statement correct?
    STEPHENSON: Yes, sir.
    THE COURT: Do you disagree with any part of the
               statement?
    STEPHENSON: No, sir.
    THE COURT: Do you wish to add to any part of the
               statement?
    STEPHENSON: No, sir.
      ***
    THE COURT: If you could just tell me in your own
               words what it was on each of these two
               occasions, on July 19, 2001, what was it
               that you did that was illegal, in your
               own words, not in legalese, just what it
               was.
    STEPHENSON: Sold the guy cocaine base.
    THE COURT: Okay. And when you sold him—when
               you sold him the drugs, did you know
               it was crack cocaine? Did you know it
               was cocaine?
    STEPHENSON: Yes.
(TR. 1/13/05, pp. 23-24).
No. 06-2574                                               9

  Stephenson also informed the probation department
that all of the information contained in the superceding
indictment—including the charge that the he “sold cocaine
base in the form of crack cocaine” was true and accurate.
(R. 53 at p. 6).
  We need not linger too long over Stephenson’s choice of
words that he “sold the guy cocaine base.” All crack
cocaine is cocaine base, but not all cocaine base is crack.
See 

. In the context of the dis-
cussion, particularly in light of the immediately preceding
colloquy referencing only crack cocaine, both the court
and Stephenson clearly were referring to that subset of
cocaine base known as crack.
  From start to finish, all of the players involved in this
transaction understood that Stephenson was selling
crack cocaine. Nevertheless, Stephenson insists that his
situation resembles that of Carl Edwards, whose case we
remanded for re-sentencing when the district court sen-
tenced Edwards to the mandatory minimum for crack
cocaine after finding that he possessed non-crack forms of
cocaine base. Edwards, 

. We reversed the
district court in that case because of an error in its legal
conclusion—that is, we reiterated our prior holdings
that the enhanced penalties described in 21 U.S.C. § 841(b)
apply only to crack cocaine and not to other forms of
cocaine base. 

We left undisturbed the district
court’s factual finding that Edwards possessed non-crack
forms of cocaine. 

it turns out, Edwards
was one of Stephenson’s suppliers, the factual finding
that Edwards possessed non-crack cocaine for the
offense of conviction in that particular case has no
10                                                No. 06-2574

bearing on the factual findings in this case that Stephenson
possessed crack. Edwards, unlike Stephenson, denied
from the get-go that he sold crack as opposed to powder
cocaine. 

Edward’s drug experts testified that
the drug in question had neither the physical form nor
color generally associated with crack. 

The
government’s drug expert testified that the substance
was indeed crack, but he based this conclusion not on
scientific tests or expert examination but on the definition
in the Sentencing Guidelines, which reads: “ ‘Cocaine base,’
for the purposes of this guideline, means ‘crack.’ ” 

Because the government’s expert relied exclusively
on the legal definition of “cocaine base” rather than
scientific evidence, the district court rejected his con-
clusion that the substances Edwards possessed were
crack. 

Stephenson’s case presented none of
this confusion. The evidence from all of the experts,
including from Stephenson himself, indicated that
Stephenson sold crack cocaine.
  In sentencing the defendant, the district court noted that
“the government has proven that the Defendant was
dealing crack cocaine, as that term has been defined in
the precedent, by any standard of proof known in law,
including proof beyond a reasonable doubt.” (R. 53 at p. 2).
The district court reviewed all of the potential evidence
in the case—all of the evidence we have outlined here—in
concluding that Stephenson sold crack cocaine. 

Particularly, the district court relied on the testimony of the
confidential source and the DEA agent, the physical
description of the drug, and the admissions Stephenson
made after the police read him his Miranda rights. 

                                                 11

All of this, the court noted, was sufficient to establish
beyond a reasonable doubt that Stephenson sold crack
cocaine. 

court also noted that although all
of that evidence sufficiently established that Stephenson
sold crack cocaine, Stephenson’s agreement with the
statements at the plea hearing and with those in the pre-
sentencing report added additional support for the con-
clusion. 

This was not a close case; the district court
correctly concluded that Robert Stephenson was selling
crack cocaine.
   We turn next to an argument Stephenson makes for the
first time on this appeal—that the definitions of “cocaine
base” is so vague that the enhanced penalties for crack
cocaine run afoul of the due process guarantees of the
Fifth Amendment. Because Stephenson did not raise
this argument below, we review it for plain error only.
United States v. Cusimano, 

, 828 (7th Cir. 1998).
  Stephenson incorrectly labels this question a matter
of first impression. We have held definitively, on
more than one occasion, that the sentencing provisions
for cocaine and cocaine base are not ambiguous and
that the enhanced penalties in 21 U.S.C. § 851 for
“cocaine base” apply to crack cocaine. See 

; 

.4 Despite these



4
  Although some circuits have concluded that the enhanced
penalty applies in different manners, see 

(chronicling division among circuits), in this circuit it
has long been clear that the enhanced penalty applies only to
                                                 (continued...)
12                                                   No. 06-2574

clear holdings, we address Stephenson’s argument once
more.
  “[T]he void-for-vagueness doctrine requires that a
penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 

, 357 (1983). A statute may
operate in an unconstitutionally vague manner if it:
“(1) does not provide a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, or
(2) fails to provide explicit standards to prevent arbitrary
and discriminatory enforcement by those enforcing the
statute.” United States v. Lim, 

, 915 (7th Cir.
2006). Unless a vagueness challenge threatens a First
Amendment interest, a court must examine the challenge
on an “as-applied” basis—that is, whether the statute
is unconstitutionally vague in light of the facts of the
case at hand. 

case, the evidence clearly indicates Stephenson
sold crack cocaine. Stephenson admitted that he was a
crack cocaine dealer in Evanston. Both the physical presen-



4
  (...continued)
crack cocaine, as that term is understood by those who use
and sell the drug. Id.; 

. The Supreme
Court thus far has not concluded that certiorari is warranted
to resolve these differences. See, e.g., United States v. Brisbane,

(D.C. Cir. 2004) cert. denied, 

(2004);

, cert. denied, 

(1996).
No. 06-2574                                                13

tation of the drug and the expert opinions of the confiden-
tial source and the DEA agent supported this identifica-
tion. If indeed some cocaine base samples might lie in a
gray area where they are unidentifiable as either crack or
non-crack cocaine base, these were not. There was
nothing confusing or ambivalent about the physical
description of the crack, the method of packaging, the
price, the language by which the experts, buyers and
sellers referred to the substance, the manner in which
Stephenson sold it, or the fact that Stephenson admitted
to being a crack dealer in Evanston. We have long held
that the statute is not ambiguous and that conclusion is
all the more clear when applied to the facts of this case.
Stephenson’s due process rights have not been impeded
by a vague definition of cocaine base.
  Stephenson’s last effort to reduce his sentence takes aim
at the relevant conduct the district court considered in
increasing his sentence. Upon his arrest, Stephenson not
only admitted to selling the crack at issue in the indict-
ment, but also admitted that during the course of his
employ as a crack cocaine dealer in Evanston from 1996 to
2003, he had purchased approximately one kilogram of
crack. The district court, whose finding we review only
for clear error (see United States v. Delatorre, 

,
866 (7th Cir. 2005)), credited Stephenson’s claim that he
had purchased one kilogram of crack cocaine. Stephenson
argues that the activity was too remote in time, and the
admission too imprecise in details and thus unreliable
to support an increase for relevant conduct.
  A court may increase a defendant’s sentence for un-
charged and unconvicted relevant conduct provided that
14                                               No. 06-2574

the conduct constitutes part of the “same course of conduct
or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(2). See also United States v. White, 

, 347 (7th Cir. 2008). A court may not treat other
drug transactions, in and of themselves, as events common
to the plan or scheme. United States v. McGowan, 

, 803 (7th Cir. 2008). Rather the assessment must
include specific findings about the “similarity, regularity
and temporal proximity of the offenses.” 

. This court requires that the district court explicitly
state which findings demonstrate the necessary relation
to the convicted offense. United States v. Panaigua-Verdugo,

, 726 (7th Cir. 2008). The court can do so
expressly (the preferred method) or by reference to the
facts and reasoning of the presentence investigation
report. 

case, the district court did both—refer-
encing specific provisions of the investigation reports
and sentencing transcripts, and concluding that the
multiple sales amounting to a total of approximately one
kilogram of crack cocaine were part of the same course of
conduct as they were connected by a common purpose, a
similar modus operandi, and involved common victims.
(R. at 53, p. 7). In this case Stephenson sold the same
drug (crack), in the same locale (Evanston, Illinois), using
the same one or few suppliers, continuously throughout
a common time frame (1996-2003).
  Contrary to Stephenson’s argument, the relevant
conduct was not too remote in time. Stephenson admitted
to selling approximately one kilogram of crack between
1996 and 2003. The court convicted Stephenson for crack
sales which occurred smack in the middle of that time
No. 06-2574                                             15

frame—in 2001. 

(offenses and his
offense of conviction were part of the same course of
conduct even despite the near three-year gap between
them). Furthermore, the evidence demonstrated that
Stephenson’s drug trafficking was more or less steady
over the period of time in question, showing a con-
tinuous pattern of drug trafficking. See 

; United States v. Farmer, 

, 373 (7th Cir.
2008) (“Where the defendant’s convicted offense was
merely the latest drug sale in an unbroken series of deals
regularly made, that is sufficient to find the defendant’s
prior drug transactions were part of the same course
of conduct as the offense of conviction.”)
  Moreover, the details of his transactions contained
sufficient specificity to establish evidence of a same
course of conduct. During his post-arrest interview,
Stephenson recited details of his crack transactions that
included names of suppliers, quantities purchased, approx-
imate transaction dates and amounts, and aggregate
quantities. (R. at 40, Ex. 11-26-B, p. 2-3). Stephenson’s
earlier conduct hit all the trigger points for rele-
vancy—significant similarity, regularity, and temporal
proximity as well as common victims, accomplices, pur-
pose, or modus operandi. See 

.
  Finally, the district court rejected Stephenson’s claim
that he exaggerated the amount of his sales to curry favor
and inflate his value as a potential government source.
The district court did not err by considering Stephenson’s
admission as evidence of his relevant conduct. See United
States v. Wilson, 

, 722 (7th Cir. 2007) (basing
16                                              No. 06-2574

finding of relevant conduct of selling 1.6 kilograms of
cocaine on defendant’s admission); United States v.
Warneke, 

, 550 (7th Cir. 2002) (noting that “an
admission of relevant conduct in a plea agreement is
even better than a jury’s finding beyond a reasonable
doubt”); United States v. Beith, 

, 887 (7th Cir.
2005) (approving district court’s consideration of rele-
vant conduct to which the defendant admitted when
determining which offense guideline most appropriately
reflected the scope of the criminal activity). There was
no evidence to suggest that Stephenson was exaggerating
his drug dealing activities.
  In sum, we conclude that the district court did not err
in determining that Stephenson was guilty of distributing
crack cocaine; the definition of crack cocaine is not uncon-
stitutionally vague, and the district court appropriately
considered relevant conduct in calculating Stephenson’s
sentence. The judgment of the district court is A FFIRMED.




                           2-17-09