                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 03-4420
RODNEY WAYNE ROBINSON, a/k/a
Dog,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Eastern District of North Carolina, at Wilmington.
                W. Earl Britt, Senior District Judge.
                           (CR-95-49-BR)

                      Argued: February 27, 2004

                       Decided: June 10, 2004

         Before LUTTIG and MICHAEL, Circuit Judges,
and William D. QUARLES, Jr., United States District Judge for the
           District of Maryland, sitting by designation.



Affirmed by unpublished per curiam opinion. Judge Michael wrote a
dissenting opinion.


                             COUNSEL

ARGUED: Edwin Chrisco Walker, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. Clay Campbell
Wheeler, Office of the United States Attorney, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Pub-
2                    UNITED STATES v. ROBINSON
lic Defender, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United State Attorney, Anne M. Hayes, Assistant United
States Attorney, Christine Witcover Dean, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

PER CURIAM:

                                  I.

  In 1996, Rodney Robinson pled guilty to conspiracy to possess a
controlled substance with the intent to distribute in violation of 21
U.S.C. §§ 846 and 841(a)(1). Robinson was sentenced to 86 months
imprisonment and 60 months of supervised release.

   Robinson completed his prison term and began his supervised
release on September 25, 2001. In November 2001, the district court
modified and continued Robinson’s supervised release in response to
a motion for revocation.

   On March 20, 2003, Robinson’s probation officer filed a motion
for revocation of the supervised release. The motion alleged that Rob-
inson had violated the terms of his release by: (1) criminal conduct
evidenced by his being charged in a North Carolina court with posses-
sion with intent to sell and deliver marijuana, resisting arrest, and
assault on a police officer; (2) possessing 6.4 grams of marijuana; and
(3) failing to notify his probation officer of his arrest for marijuana
possession. All of the violations arose out of the same incident.

   The Supervised Release Violation Worksheet prepared by the pro-
bation officer indicated that Robinson had, inter alia, committed the
violation of "[p]ossessing a controlled substance," a Grade A offense,
                      UNITED STATES v. ROBINSON                       3
and that Robinson’s criminal history category was VI. J.A. 23. The
worksheet indicated an imprisonment range of 33 to 36 months.

   On May 7, 2003, a revocation hearing was held. Robinson admitted
that he had possessed marijuana and resisted arrest, but denied that he
had possessed the marijuana with the intent to distribute it.

   Robinson presented mitigation evidence and asked that he be sen-
tenced at the bottom of the guideline range for a Grade C violation.

   The government contended that Robinson had actually been
charged with possession with the intent to sell marijuana but pled
down to simple possession, and noted that the arresting police officer
was present. The government noted that in addition to 6.4 grams of
marijuana, the officer had found scales in Robinson’s car at the time
of his arrest. The court asked the government, "[s]cales were found
in the car?" J.A. 28. The government replied, "[t]hat is correct." Id.

  Defense counsel told the court that 6.4 grams of marijuana would
subject Robinson to a maximum of twenty days imprisonment in state
court.

   The court ruled that Robinson had "violated the terms and condi-
tions of his judgment by engaging in criminal conduct, possessing a
controlled substance, and failing to notify his probation officer within
72 hours of being arrested or questioned by law enforcement." J.A.
28. Robinson’s supervised release was revoked and he was committed
to the custody of the Bureau of Prisons for a period of thirty-three
months.

                                  II.

   Appellate review of a sentence imposed under the Sentencing
Guidelines is limited to a determination of whether it is "either ‘in
violation of law . . . or as a result of an incorrect application of the
sentencing guidelines.’" United States v. Sheffer, 896 F.2d 842, 844
(4th Cir. 1990) (quoting 18 U.S.C. § 3742(e)). The district court’s
findings during sentencing should be based on a preponderance of the
evidence. Id. (citing United States v. Urrego-Linares, 879 F.2d 1234,
4                     UNITED STATES v. ROBINSON
1239 (4th Cir. 1989); United States v. Vinson, 886 F.2d 740, 741 (4th
Cir. 1989)). The appellate court should "‘give due regard to the
opportunity of the district court to judge the credibility of witnesses,
and [must] accept the findings of fact of the district court unless they
are clearly erroneous.’" Id. (quoting 18 U.S.C. § 3742(d)) (alteration
in original).

   The use of the Grade A violation guidelines was supported by evi-
dence that Robinson had pled guilty to possession of drug parapherna-
lia and the government’s proffer that scales had been found in
Robinson’s car at the time of his arrest. Robinson did not object or
assert that the proffer was untrue, and did not seek to examine the
arresting officer. Id. Under these circumstances the sentencing court
was under no constitutional duty to require the government to present
witnesses to support its proffer. United States v. Emanuel, 869 F.2d
795, 796 (4th Cir. 1989). The sentence imposed by the district court
was supported by a preponderance of the evidence and is

                                                          AFFIRMED.

MICHAEL, Circuit Judge, dissenting:

   Because I believe the district court erred in treating as evidence
statements made by government counsel at Rodney Robinson’s pro-
bation revocation hearing, and because the other information provided
the court was insufficient to support his 33-month sentence, I respect-
fully dissent.

   On March 20, 2003, the U.S. Probation Office filed a motion to
revoke Robinson’s probation. The motion referred to state court docu-
ments indicating that Robinson had been arrested in North Carolina
on February 12, 2003, after being pulled over for an insurance viola-
tion. At the time, Robinson "was questioned and searched and a small
amount of marijuana was found." J.A. 21. Robinson later pled guilty
in state court to possession of drug paraphernalia. On May 7, 2003,
the U.S. District Court held a probation revocation hearing, and the
following exchange took place:

    ROBINSON’S COUNSEL: Your honor, I’d ask that you
    sentence him to the bottom end of the guidelines, which I
                     UNITED STATES v. ROBINSON                        5
    believe is four to — I didn’t write it down, your honor it’s
    —

    THE COURT: 33 months isn’t it?

    ROBINSON’S COUNSEL: No, your honor. Our position
    is that this is a grade C violation, not an A violation because
    it’s simple possession of marijuana. . . .

    GOVERNMENT COUNSEL: Your honor, with regards to
    the grade violation. When the defendant was arrested with
    6.4 grams of marijuana, he was actually charged with pos-
    session with intent to sell and distribute that marijuana. It
    was pled down to a lower simple possession offense in state
    court. We have the officer here to testify, if the court would
    so choose. But it’s our position that based on the fact that
    it was 6.4 grams of marijuana and also the fact that scales
    were found in the car at the time of the arrest that —

    THE COURT: Scales were found in the car?

    GOVERNMENT COUNSEL: That is correct. And that
    it’s consistent with the sale and distribution as opposed to
    merely possessing marijuana. Based on that, we would con-
    tend the violation grades are correct in the report and we
    would recommend a 33 month sentence. . . .

    THE COURT: . . . It is ordered [that Robinson’s] super-
    vised release shall be revoked and the defendant is commit-
    ted to the custody of the Bureau of Prisons for a period of
    33 months.

J.A. 26-29.

   According to Robinson’s sentencing worksheet, his 33-month sen-
tence was predicated on the commission of a Grade A probation vio-
lation. In the transcript excerpts above, Robinson’s counsel argued
that Robinson’s conduct only involved simple possession of mari-
juana, which is a Grade C violation. See 21 U.S.C. § 844; U.S.S.G.
6                     UNITED STATES v. ROBINSON
§ 7B1.1(a)(3). Robinson’s drug offense could only constitute a Grade
A probation violation if it was a "controlled substance offense."
U.S.S.G. § 7B1.1(a)(1). See also United States v. Trotter, 270 F.3d
1150, 1151 (7th Cir. 2001). A "controlled substance offense" is
defined as an offense involving the "manufacture, import, export, dis-
tribution or dispensing of a controlled substance," or possession with
intent to do any of these acts. See U.S.S.G. §§ 7B1.1 cmt. n.3,
4B1.2(b). Thus, "[s]imple possession and use of a drug, without intent
to distribute, is not a ‘controlled substance offense,’" and, accord-
ingly, not a Grade A violation. Trotter, 270 F.3d at 1151. By sentenc-
ing Robinson to 33 months, the district court had to conclude that
Robinson’s recent state offense involved distribution of drugs rather
than mere possession. The problem is this: the only indication that
distribution was involved was government counsel’s statement that
scales were found in Robinson’s car.

   As the majority points out, the district court’s findings at sentenc-
ing must be supported by a preponderance of the evidence. Ante at 3.
Robinson’s 33-month sentence is valid only if a preponderance of the
evidence establishes that there were scales in his car. The majority
believes this fact is established by two pieces of information: first,
Robinson’s guilty plea to possession of drug paraphernalia in state
court; and second, the government’s oral "proffer" that scales were
found in his car. None of the documents before the district court
describe what type of paraphernalia Robinson possessed, nor do they
say that scales were in his car. The North Carolina statute governing
Robinson’s conviction provides that drug paraphernalia "includ[es],
but [is] not limited to . . . (5) Scales and balances for weighing or
measuring controlled substances . . . (12) Objects for ingesting, inhal-
ing, or otherwise introducing marijuana . . . into the body, such as
. . . (e) Objects, commonly called roach clips, for holding burning
material, such as a marijuana cigarette, that has become too small or
too short to be held in the hand." N.C. Gen. Stat. Ann. § 90-113.21.
This shows that the North Carolina statute outlawing the possession
of drug paraphernalia is not limited to possession of scales or other
items associated with distribution of drugs. Therefore, the district
court could not find, based on Robinson’s guilty plea alone, that he
was in possession of scales or any other item that would establish his
involvement in the distribution of drugs.
                      UNITED STATES v. ROBINSON                       7
   The district court, however, relied on the statements of government
counsel at the revocation hearing as evidence that Robinson’s para-
phernalia consisted of scales. Specifically, government counsel said,
"We have the officer here to testify, if the court would so choose."
J.A. 27. Government counsel then said that "based on . . . the fact that
scales were found in the car," a 33-month sentence was appropriate.
Id. If government counsel was attempting to make a formal proffer,
it was inadequate. Government counsel did not say who the officer in
the courtroom was, what exactly he would testify to, or whether he
had any firsthand knowledge of Robinson’s arrest. There was not
even a statement that the officer had made the arrest or that he was
the one who had found scales in Robinson’s car. At bottom, what the
district court had was a simple statement by government counsel that
scales were found in the car.

   The Sentencing Guidelines say that "in resolving any dispute con-
cerning a factor important to the sentencing determination, the court
may consider relevant information . . . provided that the information
has sufficient indicia of reliability to support its probable accuracy."
U.S.S.G. § 6A1.3(a). Statements of counsel not supported by record
evidence do not provide "relevant information" for resolving factual
disputes at sentencing. United States v. Harris, 230 F.3d 1054, 1057
(7th Cir. 2000) (overturning sentence enhancement where "the only
suggestion in th[e] record that [defendant] exercised such possession
c[ame] entirely from the mouth of the government’s attorney. State-
ments of counsel are not evidence."); United States v. Fetlow, 21 F.3d
243, 248 (8th Cir. 1994) ("sentencing court may consider any relevant
information . . . [but] statements of counsel are not evidence"). How-
ever, a district court may consider a proper (unchallenged) proffer as
relevant information in making a sentencing decision. See, e.g.,
United States v. Sienkowski, 359 F.3d 463, 467 (7th Cir. 2004) (recog-
nizing an appropriate proffer at sentencing hearing). In this case gov-
ernment counsel did not make an acceptable proffer. His statements
therefore lacked "sufficient indicia of reliability" to be considered as
a factual basis for the sentence. U.S.S.G. § 6A1.3(a).

   I realize that we should not expect undue formality at sentencing.
Still, if the government opts to proceed by proffer, the basic elements
of a proffer, such as the witness’s identification and the specifics of
his potential testimony, must be provided. Because the statements of
8                    UNITED STATES v. ROBINSON
government counsel cannot be considered here, the only relevant fact
established is Robinson’s guilty plea to a single count of possession
of drug paraphernalia. That, standing alone, does not prove a Class A
violation. Accordingly, I would vacate the sentence and remand for
resentencing.
