IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-60840 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUS ALLEN, JR., also known as Sealed Defendant 1,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:94-CR-91-ALL-B-N --------------------

October 19, 1999

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

The district court permitted Gus Allen, Jr., to file this

out-of-time appeal from his 1995 conviction and sentence, after a

jury trial, for distribution of cocaine base (in violation of

(a)(1)).

For the first time on appeal, Allen contends that the

district court erred in applying the Sentencing Guidelines’

enhanced penalty provisions for cocaine base because the

Government allegedly failed to prove by a preponderance of the

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-60840 -2-

evidence that the substance involved was “crack” cocaine.

See U.S.S.G. § 2D1.1(c), note (D) (definition of “cocaine base”

means “crack”). Because trial testimony by both a confidential

informant and an undercover drug-enforcement agent showed that

the substance involved was “crack” cocaine, the evidence was more

than sufficient to warrant enhanced sentencing. See United

States v. Canada,

(5th Cir. 1997) (Government

must prove sentencing factors by a preponderance of the

evidence). Accordingly, Allen’s conviction and sentence are

AFFIRMED.