PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 99-4397

CARLOS LOPEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-96-739)

Argued: May 5, 2000

Decided: July 13, 2000

Before WIDENER and MOTZ, Circuit Judges, and
Irene M. KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Widener and Judge Keeley joined.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Ross Mackenzie, BARRETT & MACKENZIE,
L.L.C., Greenville, South Carolina, for Appellant. David Calhoun
Stevens, Assistant United States Attorney, Greenville, South Caro-
lina, for Appellee. ON BRIEF: J. Rene Josey, United States Attor-
ney, Greenville, South Carolina, for Appellee.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

A jury convicted Carlos Lopez of distribution of marijuana and
conspiracy to possess with intent to distribute marijuana. The district
court found that Lopez had distributed more that 1000 kilograms of
marijuana and sentenced him to 188 months imprisonment. We vacate
the sentence and remand for resentencing.

I.

Lopez was tried on January 25-26, 1999. Prior to trial, on Septem-
ber 11, 1998, Lopez gave a proffer statement with the expectation that
he would be entering a plea agreement with the government. In the
statement, he admitted distributing approximately 1200 kilograms of
marijuana. A letter from the government to Lopez's attorneys set
forth the terms of the proffer agreement,1 including the conditions
under which the information that Lopez provided in the statement
could be used against him. After Lopez declined to enter a plea during
three different change of plea hearings, Lopez proceeded to trial.

During the trial, Lopez actively participated in his own defense; he
cross-examined a number of government witnesses and gave the clos-
ing argument. The government called several of Lopez's co-
conspirators who testified about the quantities of marijuana they had
purchased from Lopez. The government also called Special Agent
Steve Russell of the Drug Enforcement Agency, who summarized the
trial testimony and, based on that testimony, estimated that Lopez was
_________________________________________________________________
1 A "proffer agreement" is generally understood to be an agreement
between a defendant and the government in a criminal case that sets forth
the terms under which the defendant will provide information to the gov-
ernment during an interview, commonly referred to as a "proffer ses-
sion." The proffer agreement defines the obligations of the parties and is
intended to protect the defendant against the use of his or her statements,
particularly in those situations in which the defendant has revealed
incriminating information and the proffer session does not mature into a
plea agreement or other form of cooperation agreement. See, e.g., Harry
I. Subin et al., Federal Criminal Practice § 10.5 (1992).

                    2
responsible for approximately 1000 pounds (or 450 kilograms) of
marijuana within the distribution network.

Following Lopez's conviction, the United States Probation Office
prepared a pre-sentence report (PSR), which estimated that Lopez was
responsible for distributing 1652.9 kilograms of marijuana, an esti-
mate based on "confidential informant statements and seized cash."
The PSR used this estimate to calculate Lopez's base offense level
under U.S. Sentencing Guidelines Manual § 2D1.1 (1998). Lopez
filed an objection to the PSR. In response, contending that Lopez
breached the proffer agreement by taking a position at sentencing
contrary to the information previously provided under that agreement,
the government offered the testimony of Special Agent Russell
regarding the substance of Lopez's proffer statement. The district
court permitted the testimony as to the proffer over defense counsel's
objection.

The district court ultimately found that Lopez had distributed more
than 1000 kilograms of marijuana "based upon the testimony at trial."
The district court noted that the proffer statement was "a second basis
for making that finding," but that "it [was] not needed as far as a cal-
culation as to the drug amount."

On appeal, Lopez challenges the district court's decision to allow
testimony regarding the substance of his proffer statement as well as
the court's factual determination regarding the drug quantity attribut-
able to him. We consider each of these challenges in turn.

II.

Lopez first contends that the district court's consideration of his
proffer statement during sentencing violated the terms of the proffer
agreement. This contention raises a question of law that we review de
novo. See, e.g., United States v. Blake , 81 F.3d 498, 503 (4th Cir.
1996).

Section 1B1.8 of the Sentencing Guidelines provides:

          Where a defendant agrees to cooperate with the government
          by providing information concerning unlawful activities of

                    3
          others, and as part of that cooperation agreement the govern-
          ment agrees that self-incriminating information provided
          pursuant to the agreement will not be used against the defen-
          dant, then such information shall not be used in determining
          the applicable guideline range, except to the extent provided
          in the agreement.

U.S.S.G. § 1B1.8(a); see also Fed. R. Crim. P. 11(e)(6); United States
v. Cobblah, 118 F.3d 549, 551 (7th Cir. 1997) (explaining that a prof-
fer agreement is a contract governed by its express terms); United
States v. Shorteeth, 887 F.2d 253, 256-57 (10th Cir. 1989) (same).

Cases upholding the use of proffer statements during sentencing
involve proffer agreements that explicitly allowed the government to
use the information during sentencing under certain conditions prece-
dent. For example, in Cobblah, the proffer agreement provided that
if Cobblah testified contrary to the substance of the proffer statement
or "otherwise present[ed] a position inconsistent with the proffer," the
government could use the proffer "at sentencing for any purpose." 118
F.3d at 551 (emphasis added); see also United States v. Griffin, 84
F.3d 912, 919 (7th Cir. 1996) (proffer agreement incorporated simi-
larly broad language).

The proffer agreement in the instant case does not contain language
like that used in the agreements in Cobblah and Griffin, despite the
government's attempt to characterize the agreement as such during
the sentencing hearing. The proffer agreement here expressly pro-
vides that any self-incriminating information would"not be used in
determining the applicable sentencing guideline range should [Lopez]
be convicted." (Emphasis added.) The agreement permitted the gov-
ernment to use Lopez's proffer statement only under the following
limited circumstances: for cross-examination if Lopez was a witness
at trial and gave testimony "materially different from" the information
he gave in his proffer; for prosecution of Lopez for perjury or making
a false statement; or if Lopez breached the proffer agreement or a sub-
sequent plea agreement.

The government brought the proffer statement to the district court's
attention in response to Lopez's objection to the amount of marijuana
specified in the PSR--1652.9 kilograms. In doing so, the government

                    4
misstated the terms of the proffer agreement, maintaining that the
agreement permitted the government to use at the sentencing hearing
"anything he told us" in the proffer statement"since he is saying [at
sentencing] these figures [in the PSR] are wrong." Perhaps recogniz-
ing that it mischaracterized the proffer agreement before the district
court, the government now contends that Lopez "constructively testi-
fied" when he participated in his own defense at trial and when he
"personally responded" to the PSR at the sentencing hearing. As such,
a "condition precedent to the use of his statements under the proffer
agreement" was assertedly satisfied. Brief of Appellee at 10.2

We reject the government's argument and find that the use of the
information in Lopez's proffer statement, provided to the district
court through the testimony of Special Agent Russell at Lopez's sen-
tencing hearing, clearly violated the terms of the proffer agreement.
First, assuming that inconsistent trial testimony by Lopez would
somehow permit use of the proffer at sentencing, Lopez never gave
any actual or "constructive" testimony at trial. He did participate in
his defense during trial, but he did not take the stand as a witness
under oath. Lopez did accuse certain government witnesses of lying,
and he questioned the admissibility of certain testimony, but he did
so outside the presence of the jury. In addition, in his closing state-
ment, Lopez challenged the amount of marijuana the government
attempted to attribute to him during the trial, but, as the district court
properly instructed the jury, "[t]he statements, objections, arguments
by the defendant and by the attorney for the government [are] not evi-
dence." Finally, Lopez's objection at the sentencing hearing to the
statement in the PSR that he distributed 1652.9 kilograms of
marijuana--assuming again that this objection somehow constitutes
"constructive testimony"--was not inconsistent with, or "materially
different from," the admission in his proffer statement that he had dis-
tributed 1200 kilograms of marijuana. After all, the PSR calculation
was over 400 kilograms more than the amount that Lopez admitted
distributing in his proffer.3
_________________________________________________________________
2 The government concedes that there is "no alternative theory of
admissibility" for the proffer statement. Brief of Appellee at 10.
3 Under U.S.S.G. § 2D1.1, the base offense level is 32 if the defendant
distributed 1000 to 3000 kilograms of marijuana. Thus, although the dif-

                    5
In sum, no condition precedent to the use of the proffered informa-
tion by the government was satisfied in this case. In light of this fact,
as well as the government's explicit promise in the agreement that
any self-incriminating information provided by Lopez would "not be
used in determining the applicable sentencing guideline range should
[Lopez] be convicted," we find that the district court erred in permit-
ting the government at the sentencing hearing to use the information
in the proffer statement to establish the drug quantity attributable to
Lopez.4

III.

Lopez also contends that, absent the proffer information, the dis-
trict court's holding that he distributed at least 1000 kilograms of
marijuana finds inadequate support in the record. We review a district
court's drug quantity determination for clear error. See 18 U.S.C.
§ 3742(e) (1994 & Supp. IV 1998); United States v. Randall, 171
F.3d 195, 210 (4th Cir. 1999).
_________________________________________________________________
ference in drug quantities contained in the PSR and the proffer statement
are immaterial under the Guidelines, this does not affect the appropriate-
ness of Lopez's objection, particularly because the PSR stated only that
the amount was based on "confidential informant statements and seized
cash."

4 We also note that, immediately following the proffer agreement's pro-
hibition against the use of the proffered information for sentencing calcu-
lations, the agreement states that "this information will be made available
to the Court for its consideration." We caution against such language as
it would seem to "allow ambush by [a] broadly worded disclaimer[ ]."
Shorteeth, 887 F.2d at 257. We agree with the Seventh Circuit's determi-
nation that

          the language and spirit of Guidelines § 1B1.8 require the agree-
          ment to specifically mention the court's ability to consider
          defendant's disclosures during debriefing in calculating the
          appropriate sentencing range before the court may do so. This is
          the most reasonable construction of the "except to the extent"
          language of § 1B1.8 and the commentary.

Id.

                     6
"When the amount of drugs for which a defendant is to be held
responsible is disputed, the district court must make an independent
resolution of the factual issue at sentencing." United States v. Gilliam,
987 F.2d 1009, 1013 (4th Cir. 1993) (citing U.S.S.G.§ 6A1.3(b)).
"The Government bears the burden of proving by a preponderance of
the evidence the quantity of drugs for which a defendant should be
held accountable at sentencing." Id. (citing United States v. Goff, 907
F.2d 1441, 1444 (4th Cir. 1990)). In response to Lopez's objection to
the PSR, the government first stated that the PSR's calculation of
1652.9 kilograms was based on Special Agent Russell's review of his
notes from the interviews he conducted with all of the government's
witnesses, presumably including those witnesses not called to testify
at trial. The prosecutor explained that Special Agent Russell used the
mean of the drug quantity range he received from each witness, in
addition to the seizures of marijuana and cash, in making the calcula-
tion. Upon hearing this, the district court focused on evidence pro-
duced at trial, requesting that government counsel refresh its memory
as to the trial testimony. The prosecutor stated that "from the tran-
script itself, there is no question there was over seven hundred kilo-
grams from the witnesses that actually testified in front of you,
possibly a little more than that." At one point during the hearing, after
the prosecutor described the drug quantity information in the proffer
statement, there was some confusion as to the measurements--pounds
or kilograms--used in the recommended calculation.

Following Special Agent Russell's testimony at the sentencing
hearing regarding the proffer, the district court stated that it was "in-
clined to find that the amount of drugs is more than one thousand
kilograms, based upon the testimony at trial," and ultimately the court
did find "that the guideline calculation as to the amount of drugs is
correct. And as previously stated as far as the intention of the court,
that that is based upon the record in the case, which consists of the
testimony at trial which shows, and very conservatively, it's at least
a thousand kilograms."5
_________________________________________________________________
5 In its final written judgment, the district court also purported to adopt
the factual findings in the PSR, but government counsel expressly
acknowledged at oral argument before us that in determining the drug
quantity the district court relied solely on trial testimony and Lopez's
proffer, not the amount specified in the PSR.

                     7
Our review of the record indicates that the trial testimony simply
provides no basis for this finding. Much of that testimony was con-
flicting and imprecise, and the prosecutor not only stated during the
sentencing hearing that that testimony could account for only seven
hundred kilograms, or "possibly a little more than that," but also con-
ceded that some witnesses testified at trial only in general terms and
that he "did not get into any exact quantities with them . . . during the
trial." Moreover, the government's chief witness, Special Agent Rus-
sell, testified at trial that based on the trial witnesses' testimony,
Lopez had distributed only about 1000 pounds (or 450 kilograms) of
marijuana.

We recognize that approximation of drug quantities is inherently
imprecise, but the trial record here provides no sufficient basis for
finding that Lopez distributed at least 1000 kilograms of marijuana.

IV.

For the foregoing reasons, we vacate Lopez's sentence and remand
to the district court for further proceedings consistent with this opin-
ion.

VACATED AND REMANDED

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