UNITED STATES of America, Plaintiff-Appellee, v. Brian Edward BUTLER, Defendant-Appellant

Brian Edward Butler was convicted of possession of cocaine base, a controlled substance. He was sentenced to a term of five years’ imprisonment pursuant to 21 U.S.C. § 844 (a). Prior to trial, he moved to suppress evidence that cocaine base was found concealed in his underwear during the booking process. He contends that a reversal is compelled because the officers did not have probable cause to arrest him.

He also argues that the imposition of a felony sentence for simple possession of a controlled substance must be reversed because the district court failed to instruct the jury that the quantity of cocaine base is an element of a violation of section 844(a).

We affirm because we conclude that there was probable cause for the arrest. The crime report submitted by the victim was credible and adequately corroborated by the independent observations of the arresting officer. We also hold that the quantity of the controlled substance possessed by the defendant is a sentencing factor, and not an element of the crime prescribed by 21 U.S.C. § 844 (a).

I

During the evening of May 20,1993, Butler and another male went to a used car lot operated by Raymond Salley. Butler offered to…