UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 94-5316
ROBERT DONNELL JONES, a/k/a
Donnie,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-92-261-WN)

Argued: September 29, 1995

Decided: April 30, 1996

Before RUSSELL and WIDENER, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Fred Warren Bennett, CATHOLIC UNIVERSITY LAW
SCHOOL, Washington, D.C., for Appellant. Christine Manuelian,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: William B. Purpura, Baltimore, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, Baltimore, Mary-
land, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant, Robert Donnell Jones, pleaded guilty on April 23, 1993
to conspiracy to distribute, and possession with intent to distribute,
heroin. Under Jones's written plea agreement, both he and the govern-
ment agreed to leave open for the district court's determination the
quantity of heroin attributable to Jones from the conspiracy, which
would be used to determine his base offense level. Shortly before sen-
tencing, both parties further agreed that the government would rely on
the testimony of co-operating witnesses from the prior trials of some
of Jones's alleged co-conspirators to establish the quantity of heroin
attributable to Jones. Those trials were conducted between May and
August 1993 before the same district judge who sentenced Jones.

Jones was sentenced on April 7, 1994. The district judge made fac-
tual findings in which he attributed 11,700 grams of heroin to Jones,
yielding a base offense level of 36 (10-30 kilos). Appellant was given
a three-level downward adjustment for acceptance of responsibility,
and his criminal history category was 3. Accordingly, the district
judge sentenced him to 176 months imprisonment, which was eight
months above the low end of the applicable guidelines.

Appellant filed a timely notice of appeal on April 13, 1994. He
argues on appeal that the district judge erred in calculating the quan-
tity of drugs attributable to him from the conspiracy. Specifically,
Appellant challenges the factual basis for three transactions, which
involve a total of 4900 grams of heroin.

After reviewing the transcripts of the witnesses proffered by the
government to support the challenged transactions, the court agrees
that the evidence does not support the district judge's calculations.
Therefore, we vacate the sentence and remand for resentencing con-
sistent with this opinion.

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I.

The calculation of the quantity of drugs attributable to a defendant
is a factual determination to be made at sentencing, and the findings
of the district court should be upheld unless they are clearly errone-
ous. United States v. Goff, 907 F.2d 1441, 1444 (4th Cir. 1990); see
also 18 U.S.C. § 3742(e) ("The court of appeals shall give due regard
to the opportunity of the district court to judge the credibility of the
witnesses, and shall accept the findings of the district court unless
they are clearly erroneous. . . .").

The government bears the burden of proving, by a preponderance
of the evidence, the quantity of drugs involved. Goff, 907 F.2d at
1444. As this court has previously recognized, "[t]he government may
meet its burden by presenting evidence that the court deems sufficient
to establish the quantity of drugs attributable to a defendant." United
States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). Sentencing
courts must bear in mind, however, that drug quantity is generally the
principal factor in determining the sentencing ranges for drug
offenses under the guidelines. The United States Court of Appeals for
the First Circuit articulated this concern in United States v. Sepulveda,
15 F.3d 1161 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994):

          Courts must sedulously enforce the quantum-of-proof rule,
          for, under the guidelines, drug quantity has a dramatic lev-
          eraging effect. Thus, relatively small quantitative differ-
          ences may produce markedly different periods of
          immurement. This reality informs the preponderance stan-
          dard, requiring that district courts must base their findings
          on "reliable information" and, where uncertainty reigns,
          must "err on the side of caution."

Id. at 1198 (quoting United States v. Sklar, 920 F.2d 107, 113 (1st
Cir. 1990)); see also United States v. Shonubi , 998 F.2d 84, 89-90 (2d
Cir. 1993) ("This careful practice is essential where a defendant's sen-
tence depends in such large measure on the amount of drugs deemed
attributable to his conduct.").

Where, as here, no seizure of drugs has occurred, the court must
approximate the quantity of drugs to attribute to the defendant.

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U.S.S.G. § 2D1.1 commentary, application n.12. The court must base
its approximation on specific evidence, however, and may not resort
to speculation, surmise, or conjecture. See Shonubi, 998 F.2d at 90.

II.

Appellant challenges only three of the nineteen drug transactions
listed by the government in its sentencing memorandum. Specifically,
Appellant challenges the transactions identified as numbers 1, 3, and
5 in the government's papers. We address each of these seriatim.

A.

In transaction number 1, the government alleged that Appellant
was responsible for 800 grams of heroin. This amount was based on
the testimony of Goodluck Jinanwa at the trial of Romanus Nwaneri.
Jinanwa testified that sometime between March and September 1991
Nwaneri delivered heroin to Collins Nnadozie, an alleged supplier of
Appellant, "[s]ometimes twice a week" in amounts "[s]ometimes 200
grams." J.A. at 122. To achieve the figure of 800 grams, the govern-
ment used a one-month period (March 1991) and assumed one deliv-
ery per week of 200 grams each. J.A. at 187. The district court agreed
with the government's calculation and attributed all 800 grams to
Appellant.

After reviewing the relevant portions of the transcript, this court
must conclude that Jinanwa's testimony does not support a finding of
800 grams. As Appellant contends, there is no testimony in the record
that Jinanwa personally knew that all of the heroin received by Nna-
dozie from Nwaneri was in turn delivered to Appellant. In fact, the
only testimony from Jinanwa regarding the relationship between
Appellant and Nnadozie belies the contention that Appellant was
Nnadozie's only customer. Jinanwa testified that"Donnie" (Appellant
Jones) "was somebody new who he [Collins Nnadozie] was selling
some heroin to." J.A. at 121 (emphasis added). This testimony indi-
cates that Nnadozie had other customers than Appellant and that Nna-
dozie was not selling all of his heroin to Appellant.

To attribute 800 grams to Appellant from Jinanwa's testimony, the
district court had to speculate that Appellant received from Nnadozie

                    4
all of the heroin that Nnadozie received from Nwaneri. The district
court's conclusion is missing a necessary link in the chain of permis-
sible inferences. Although the government asserts that the amount of
800 grams represents a conservative estimate of quantity, even that
amount is not supported by the record.

B.

With regard to transaction number 3, Appellant challenges 1100 of
the 1600 grams of heroin that the district court attributed to him. The
government had alleged that Appellant was responsible for 2000
grams, based on the testimony of Gloria Nwosu at the Nwaneri trial.
The government based that figure on testimony that Nwosu made 10-
12 visits to Collins Nnadozie's house to drop off heroin or pick up
money for the drugs. When asked what quantity of drugs she deliv-
ered to Nnadozie on any of those occasions, she stated, "Up to 300
grams and 200 grams. The other ones, I don't know exactly what the
quantities were." J.A. at 127. The government multiplied 10 visits
times 200 grams to achieve the 2000 gram figure alleged in their sen-
tencing memorandum.

The district court found that the government had proven that
Nwosu had made at least eight trips and that each trip involved at
least 200 grams of heroin. Therefore, the court attributed 1600 grams
to Appellant based on Nwosu's testimony. J.A. at 201-02.

Appellant acknowledges that Nwosu's testimony supports a finding
of 500 grams attributable to him. She testified to two specific drug
transactions in April 1991 involving Appellant: one for 300 grams,
and another for 200 grams. However, Appellant challenges the
remaining 1100 grams that the district court attributed to him.

As Appellant again argues, there is no evidence in the record that
all of the heroin received by Nnadozie was passed on to Appellant.
As this court found in connection with transaction number 1 above,
that inference is simply not supported by the record.

In addition, Nwosu's testimony is quite vague about precisely how
many trips to Nnadozie's house involved heroin. Although she testi-

                    5
fied about 10-12 visits, she stated that some of those trips merely
involved picking up money from a previous delivery of drugs. Also,
she testified that a couple of those visits were merely for socializing
with Nnadozie. J.A. at 127. The amount of heroin involved in these
transactions is also unclear. Nwosu testified that two transactions
involved "up to" 200 or 300 grams, but that she did not know pre-
cisely what the other quantities were. The district court's assumption
that eight transactions of 200 grams each occurred is not supported by
the preponderance of the evidence. See United States v. Shonubi, 998
F.2d at 89 (holding that district court erred in calculating drug quan-
tity by multiplying the amount of drugs found on defendant upon his
arrest for smuggling heroin times the number of previous trips defen-
dant allegedly made).

C.

Finally, Appellant challenges transaction number 5, for which the
district court ascribed 2.5 kilos of heroin to Appellant. That quantity
was based on the testimony of Anthony Nwaka at the Nwaneri trial.
Nwaka stated that he had delivered heroin to Collins Nnadozie seven
or eight times between July and August 1991 and that the "[t]otal sum
[was] well over 2.5 kilos." J.A. at 143-44.

Appellant argues that the district court's finding with regard to this
transaction is similarly flawed. According to Appellant, Nwaka's tes-
timony supports only one transaction of 200 grams specifically
involving Appellant.

Also, as Appellant argued with respect to the other two challenged
transactions, there is no evidence that all of the drugs which were
delivered to Nnadozie were in turn transmitted to Appellant. Nwaka
testified that Romero Nwaneri told him that "Donnie [Appellant
Jones] doesn't want to deal with anybody other than Collins [Nnado-
zie]." J.A. at 144. Although that statement implies that Nnadozie may
have been Appellant's sole supplier, it does not imply that Appellant
was Nnadozie's only customer. Therefore, the district court erred in
attributing to Appellant all 2.5 kilos that Nwaka delivered to Nnado-
zie.

One consistent problem with the government's proof in all three
challenged transactions is that it relied on testimony of witnesses from

                    6
the trials of several co-conspirators. That testimony focused on the
activities of the co-conspirators and not specifically on the activity of
Appellant. The involvement of Appellant was only discussed periph-
erally at the trial of the other co-conspirators. Although both parties
agreed that the government would rely on such testimony, that agree-
ment does not relieve the government of the burden of proving drug
quantity by a preponderance of the evidence.

III.

For the foregoing reasons, the court determines that the district
court was clearly erroneous in calculating the quantity of drugs attrib-
utable to Appellant in transactions 1, 3 and 5 for purposes of setting
his base offense level. Accordingly, we vacate Appellant's sentence
and remand for resentencing consistent with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS

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