UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 98-4802
EDWARD ROBINSON, a/k/a Eddy
Eyeball,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-98-12)

Submitted: July 22, 1999

Decided: August 3, 1999

Before ERVIN, HAMILTON, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Martin P. Sheehan, SHEEHAN & NUGENT, Wheeling, West Vir-
ginia, for Appellant. David E. Godwin, United States Attorney, Sam
G. Nazzaro, Assistant United States Attorney, Lisa Grimes Johnston,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Edward Robinson pled guilty to distributing crack cocaine within
1000 feet of a school (Count Five). See 21 U.S.C. §§ 841(a), 860
(1994). He appeals his 168-month sentence, contending that the dis-
trict court clearly erred in determining the amount of drugs for which
he was accountable, see U.S. Sentencing Guidelines Manual § 2D1.2
(1997), and in finding that he had not accepted responsibility. See
USSG § 3E1.1. He also argues that the district court misinterpreted
the guidelines by finding that the term "instant offense" includes rele-
vant conduct, and therefore adding two criminal history points under
USSG § 4A1.1(e). We affirm.

First, the district court did not clearly err in determining the amount
of drugs. See United States v. McDonald, 61 F.3d 248, 255 (4th Cir.
1995). The base offense level calculated in the presentence report
included half an ounce of crack that Joe Burt testified he bought from
Robinson and thirty-five grams of crack that Edgar Phillips testified
he sold to Robinson. Robinson challenged the reliability of both wit-
nesses, alleging that 1992 police reports from Pittsburgh, Pennsylva-
nia, showed that Phillips exaggerated the amount of crack he said he
sold to undercover officers in a separate case, and that Burt had
falsely reported that he had not moved while on pretrial release in
1997, which resulted in revocation of his bond. The district court con-
cluded that Robinson had not shown with sufficient particularity that
the grand jury testimony of either witness was too unreliable to be
considered in his case. We agree. Relevant hearsay evidence may be
considered at sentencing if it "has sufficient indicia of reliability to
support its probable accuracy." USSG § 6A1.3(a), p.s. The test is
whether the information has "some minimal indicium of reliability
beyond mere allegation." United States v. Hicks, 948 F.2d 877, 883
(4th Cir. 1991) (internal quotation and citation omitted). Here, the
evidence in question was given under oath in a judicial proceeding,

                    2
both Phillips and Burt had previously appeared before the district
court and the court thus was able to gauge their credibility to some
extent, and the evidence they gave was consistent with grand jury tes-
timony from other witnesses.

Second, the district court did not clearly err in denying Robinson
an adjustment for acceptance of responsibility when he violated the
conditions of his bond by leaving West Virginia without permission
and subsequently was arrested in Cleveland, Ohio, and charged with
drug offenses involving crack and marijuana. See United States v.
Castner, 50 F.3d 1267, 1279 (4th Cir. 1995) (standard of review);
USSG § 3E1.1, comment. (n.1(b) (district court may consider whether
defendant has voluntarily terminated his criminal conduct or associa-
tions).

Finally, the district court did not err in determining Robinson's
criminal history. We review the district court's interpretation of
guideline terms de novo. See United States v. Jones, 31 F.3d 1304,
1315 (4th Cir. 1994). Under USSG § 4A1.1(e), two criminal history
points are added if the instant offense was committed within two
years of the defendant's release from imprisonment on a sentence
counted under subsection (a) or (b). Application Note 5 to USSG
§ 4A1.1 states that the two points should be"added if the defendant
committed any part of the instant offense (i.e. , any relevant conduct)
less than two years following release from confinement."

Robinson was released from a six-month jail sentence for resisting
arrest and battery on January 12, 1994. In May 1995, he sold crack
to an informant making a controlled drug purchase. Additional con-
trolled purchases were made in 1996. The offense of conviction
occurred in January 1998. Two points were properly added because
the six-month jail sentence was counted under subsection (b) and
occurred less than two years before Robinson's May 1995 sale of
crack. Robinson argues that the term "instant offense" should not
include relevant conduct because it violates the plain meaning of the
guideline. See Stinson v. United States, 508 U.S. 36, 42-45 (1993)
(guideline commentary is binding unless it violates the Constitution,
a federal statute, or plain meaning of guideline). We find that Appli-
cation Note 5 does not violate the plain meaning of the guideline and
that the district court did not err in adding the two points.

                    3
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

                    4
