UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                         No. 96-4577
COLIN MASSIAS, a/k/a C, a/k/a
Jamaican C,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Thomas A. Wiseman, Jr., Senior District Judge for the Middle
District of Tennessee, sitting by designation.
(CR-94-148)

Submitted: April 29, 1997

Decided: May 30, 1997

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Mark T. Calloway, United States Attorney, Frank D. Whitney, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellant.
James J. Exum, HOOVER, WILLIAMS & EXUM, P.A., Charlotte,
North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Colin Massias was convicted by a jury of conspiring to possess
with intent to distribute and to distribute cocaine, see 21 U.S.C.A.
§ 846 (West Supp. 1997). He was sentenced to 160 months imprison-
ment. The government appeals Massias' sentence, alleging that the
district court erred in refusing to consider evidence that Massias con-
spired to distribute crack cocaine as well as powder cocaine. We
vacate the sentence and remand for resentencing.

The government produced abundant evidence during trial that Mas-
sias obtained powder cocaine and had it cooked into crack for distri-
bution. Additionally, the presentence report contained information
that Massias and his co-conspirators obtained powder cocaine but dis-
tributed crack. Nonetheless, the probation officer calculated Massias'
base offense level using the guideline for powder cocaine because the
indictment charged him with participating in a cocaine conspiracy. At
sentencing, the district court summarily overruled the government's
objection to the recommended guideline range, commenting: "[Y]ou
indicted him for powder, you tried him for powder, and I'm going to
sentence him for powder."

A sentencing court may consider any information concerning the
defendant's background, character, and conduct. See 18 U.S.C.A.
§ 3661 (West 1985); United States v. Watts , 117 S. Ct. 633, 638
(1997) (per curiam) (holding that sentencing court may consider
acquitted conduct which government establishes by preponderance of
evidence). Under the federal sentencing guidelines, a defendant's
offense level is determined on the basis of his relevant conduct, which
may include conduct not charged in the indictment. See U.S. Sentenc-
ing Guidelines Manual § 1B1.3 (1995). Specifically, the guidelines
provide that a defendant is accountable for all his acts which occurred
during commission of the offense of conviction. See U.S.S.G.

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§ 1B1.3(a)(1). In addition, the defendant is accountable for all acts
that were part of the same course of conduct or same common scheme
or plan as the offense of conviction. See U.S.S.G. § 1B1.3(a)(2).

Guidelines commentary explicitly states that "[c]onduct that is not
formally charged or is not an element of the offense of conviction
may enter into the determination of the applicable guideline range."
U.S.S.G. § 1B1.3, comment. (backg'd.). The same commentary pro-
vides that, "in a drug distribution case, quantities and types of drugs
not specified in the count of conviction are to be included in deter-
mining the offense level if they were part of the same course of con-
duct or common scheme or plan as the offense of conviction." Id.; see
also U.S.S.G. § 2D1.1, comment. (n.12); United States v. McCaskey,
9 F.3d 368, 382-83 (5th Cir. 1993) (holding that defendant's convic-
tion of participation in cocaine hydrochloride conspiracy did not pre-
clude consideration of crack he distributed).

Finally, the background commentary states that, in cases involving
drug offenses and other crimes to which U.S.S.G.§ 3D1.2 applies, the
guidelines provide for consideration of a broad range of conduct, with
the expectation that the court will rely "on the entire range of conduct,
regardless of the number of counts that are alleged or on which a con-
viction is obtained." U.S.S.G. § 1B1.3, comment. (backg'd.); see also
Watts, 117 S. Ct. at 636. Sentencing enhancements do not punish a
defendant for crimes other than the offense of conviction, but ensure
a sentence which takes into account the manner in which he commit-
ted the offense of conviction. See Watts, 117 S. Ct. at 636 (citing
Witte v. United States, 115 S. Ct. 2199, 2207-08 (1995)).

In this case, the district court refused to consider evidence that
Massias trafficked in crack, simply because he was prosecuted for
participation in a cocaine conspiracy. Because the court misapplied
the guidelines by not permitting the government to present evidence
of the defendant's relevant conduct, resentencing is required.

We therefore vacate the sentence and remand for resentencing. The
district court should determine the base offense level after hearing the
parties' evidence concerning Massias' relevant conduct. We dispense
with oral argument because the facts and legal contentions are ade-

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quately presented in the materials before the court and argument
would not aid the decisional process.

VACATED AND REMANDED

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