UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 99-4446

MICHAEL A. CLYBURN,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Jackson L. Kiser, Senior District Judge, sitting by designation.
(CR-98-177, CR-98-178, CR-98-179)

Submitted: December 14, 1999

Decided: January 7, 2000

Before LUTTIG and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles D. Luckey, BLANCO, TACKABERY, COMBS & MATA-
MOROS, P.A., Winston-Salem, North Carolina, for Appellant. Walter
C. Holton, Jr., United States Attorney, L. Patrick Auld, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Michael A. Clyburn was convicted by a jury of three counts of
bank robbery, see 18 U.S.C.A. § 2113(a) (West Supp. 1999), and
acquitted of using or carrying a firearm during a crime of violence.
See 18 U.S.C.A. § 924(c) (West Supp. 1999). Clyburn was sentenced
to a term of 300 months imprisonment. Clyburn appeals his sentence,
arguing that the district court failed to make adequate findings and
should have used the clear and convincing standard of proof when it
found that he was accountable for the firearm possessed by his
accomplice, Derrick Shuron, during the third robbery. We affirm.

Shuron testified at Clyburn's trial that, in late February 1998, he
accepted Clyburn's invitation to go to North Carolina to rob banks.
Clyburn then drove Shuron from Baltimore to Winston-Salem, North
Carolina, and shortly afterward, Shuron robbed three banks while
Clyburn waited in his car. Shuron testified that, before the third rob-
bery, Clyburn gave him a gun to carry. After this robbery, as Shuron
ran toward the getaway car, a dye pack exploded in his pocket,
attracting the attention of several witnesses, one of whom called the
police and reported the license number of Clyburn's car after Shuron
got into it. Clyburn drove a short distance from the bank, then, fearing
arrest, told Shuron to get out of his car. Both Clyburn and Shuron
were arrested soon afterward. Shuron was stained with red dye and
had a loaded semiautomatic handgun in his pocket. Clyburn denied
any involvement in the robberies.

Because a firearm was possessed during the third bank robbery, the
probation officer recommended a five-level enhancement to the base
offense level under U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(2)(C) (1998). In written objections to the presentence
report, Clyburn disputed the enhancement, asserting that he did not
give the gun to Shuron and did not know that Shuron had it. However,

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at the sentencing hearing, Clyburn presented no evidence on this
issue. His attorney noted that Clyburn denied participating in the rob-
beries. The district court overruled the objection to the firearm
enhancement, observing that "the evidence is that they had the gun,
both of them knew about it, it was in the car."

Clyburn concedes on appeal that, generally, in deciding issues per-
taining to the defendant's sentence, the district court may take into
account acquitted conduct and that the accepted standard of proof is
by a preponderance of the evidence. See United States v. Watts, 519
U.S. 148, 156 (1997). He argues that his is an exceptional case where
relevant conduct of which the defendant has been acquitted so dra-
matically increases the sentence that due process requires use of the
clear and convincing standard of proof. See id. (acknowledging split
in circuits over whether "extreme circumstances" may require use of
higher standard).

We find, first, that it was Clyburn's burden to show in some affir-
mative manner that the information in the presentence report that he
supplied the firearm to Shuron was inaccurate or unreliable. See
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Because he
did not attempt to make such a showing, the district court was free
to adopt the recommendations in the presentence report without mak-
ing explicit findings. See id. Moreover, given that the enhancement
depended on the district court's assessment of the credibility of
Shuron's trial testimony, and the district court evidently found that
testimony believable, we cannot say that the district court clearly
erred in finding that Clyburn was complicit in Shuron's possession of
the firearm during the robbery. See United States v. Romer, 148 F.3d
359, 371 (4th Cir. 1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1032
(1999).

Finally, with regard to the principal issue raised here, Clyburn did
not ask the district court to apply a clear and convincing standard of
proof. Consequently, we apply the plain error standard of review. See
United States v. Olano, 507 U.S. 725, 732-35 (1993) (error must have
occurred, which was plain, affected the defendant's substantial rights,
and must be corrected to protect the fairness, integrity, or public repu-
tation of judicial proceedings). We cannot find that the district court
plainly erred here because we have consistently applied the prepon-

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derance of the evidence standard at sentencing. Nor do we find that
Clyburn's five-level enhancement creates an exceptional circum-
stance which might warrant consideration of a higher standard of
proof.

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

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