PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4235

ROBERT ANTHONY WASHINGTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4246

ALEX DAVIS,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-96-4)

Argued: April 10, 1998

Decided: June 1, 1998

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge, and
WILLIAMS, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by published opinion.
Chief Judge Wilkinson wrote the opinion, in which Judge Widener
and Senior Judge Williams joined.

_________________________________________________________________
COUNSEL

ARGUED: John Miles Morgan, YOUNG, MORGAN & CANN,
Clarksburg, West Virginia, for Appellant Washington; Rodney Lloyd
Bean, STEPTOE & JOHNSON, Morgantown, West Virginia, for
Appellant Davis. Sherry L. Muncy, Assistant United States Attorney,
Elkins, West Virginia, for Appellee. ON BRIEF: William D. Wil-
moth, United States Attorney, Elkins, West Virginia, for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Robert Anthony Washington pled guilty to aiding and abetting in
the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. Alex Davis, a codefendant, pled guilty to conspiracy
to possess with intent to distribute and to distribute cocaine, in viola-
tion of 21 U.S.C. § 846. Washington appeals his sentence, arguing
that the district court impermissibly relied on his statements to a pro-
bation officer that were immunized under his plea agreement with the
government. We agree with Washington and remand his case for fur-
ther sentencing proceedings. Davis also raises challenges to his sen-
tence. Finding his contentions without merit, we affirm the judgment
of the district court with respect to his sentence.

I.

In February 1996, the United States filed a ten-count indictment
charging Washington, Davis, and three codefendants with various
drug-related offenses. Both Washington and Davis ultimately entered
into plea agreements with the government. Washington pled guilty to
one aiding and abetting count, 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2,
and Davis pled guilty to one conspiracy count, 21 U.S.C. § 846.

In his plea agreement, Washington promised to "be completely
forthright and truthful with federal officials . . . with regard to all
inquiries made of him." In return, the government agreed "that any
information obtained from Mr. Washington in compliance with this

                     2
cooperation agreement will be made known to the sentencing Court;
however, pursuant to Guideline 1B1.8, such information may not be
used by the Court in determining Mr. Washington's applicable guide-
line range." Washington and the government stipulated in the agree-
ment that the total relevant conduct "would be at least 4 but less than
5 grams of cocaine base."

At his sentencing hearing, Washington moved for a reduction in his
offense level on the grounds that he was a minimal or minor partici-
pant. See U.S.S.G. § 3B1.2. He argued that the conduct with which
he was charged was minimal in comparison to the larger conspiracy
identified in the indictment. During the sentencing hearing, the dis-
trict court itself called Mark Sneberger, the probation officer who had
prepared Washington's presentence report. During his testimony,
Sneberger recalled a conversation he had with Washington after
Washington had entered into his plea agreement. Washington had at
that time admitted that the relevant conduct to which he had stipulated
underestimated the amount of drugs he actually had distributed.
Washington's counsel objected to Sneberger's testimony, but the dis-
trict court allowed it, reasoning, "[I]f you are seeking a reduction in
role for your client, based on his role in the total conspiracy, what he
told the probation officer about that is certainly important for me to
know."

The district court later in the hearing indicated that, without addi-
tional information from Sneberger, "it would appear that Mr. Wash-
ington also ought to be entitled to" the reduction in offense level that
one of his codefendants received. But the district court stated further:
"Mr. Washington had this follow-up conversation with Mr. Sneber-
ger, and I'm aware of what was said. Based on what was said, I can-
not ignore it and grant your defendant a two-level reduction for a
minor role." The court then sentenced Washington to 51 months in
prison plus three years supervised release.

Davis and the government stipulated in his plea agreement that his
total relevant conduct "would be at least 100 but less than 200 grams
of cocaine." The agreement stated that this amount was based on trips
Davis made between West Virginia and Pennsylvania, including but
not limited to a trip made on May 20, 1995. That day the Pennsylva-
nia State Police stopped Davis for speeding and uncovered cocaine

                     3
during a consent search of the car he was driving. A July 5, 1995 lab
report issued by a forensic scientist at the Harrisburg Regional Labo-
ratory of the Pennsylvania State Police concluded that the "off-white
chunky and powdery material and . . . beige chunky material" found
in Davis' car weighed 103 grams and contained cocaine.

When Sneberger was compiling Davis' presentence report, he
noticed that the lab report appeared to describe a substance that
included cocaine base. Sneberger therefore contacted the forensic sci-
entist who had prepared the July 5, 1995 report and asked her if part
of the drugs might have been cocaine base. After consulting her files,
the scientist indicated that approximately twenty grams was cocaine
base. Sneberger then asked her to issue an amended report. That
December 4, 1996 lab report indicated that the substance seized on
May 20, 1995 included 20.3 grams of cocaine base and 82.7 grams
of cocaine hydrochloride. Sneberger appended the amended report to
Davis' presentence report.

Because the amendment to the lab report dramatically changed his
sentence, Davis objected to the report's reliability at his sentencing
hearing. The district court called Sneberger to testify, examined him,
and entertained argument from Davis. The district court then found
by a preponderance of the evidence that the amended lab report was
reliable, and sentenced Davis to 70 months in prison plus five years
supervised release. Both Washington and Davis now appeal their sen-
tences.

II.

Washington appeals the district court's denial of his motion for a
reduction in offense level pursuant to U.S.S.G.§ 3B1.2. He argues
that the district court made that decision by improperly relying on
statements he made to the probation officer preparing his presentence
report. Washington contends that pursuant to his plea agreement and
U.S.S.G. § 1B1.8 his statements could not be used in determining his
applicable guideline range.

We agree. The plea agreement Washington entered into with the
government imposed upon him a duty to be completely truthful with
respect to all inquiries made by federal officials. The government in

                    4
return guaranteed Washington that any information obtained from
him pursuant to such cooperation, in accordance with U.S.S.G.
§ 1B1.8, would "not be used by the Court in determining [his] appli-
cable guideline range." Section 1B1.8(a) similarly provides that when
"the government agrees that self-incriminating information provided
pursuant to the agreement will not be used against the defendant, then
such information shall not be used in determining the applicable
guideline range." And the commentary further clarifies that "where
the defendant, subsequent to having entered into a cooperation agree-
ment, provides such information to the probation officer preparing the
presentence report, the use of such information remains protected by
this section." Id. § 1B1.8 Application Note 5; see also United States
v. Fant, 974 F.2d 559, 564 (4th Cir. 1992) (section 1B1.8 "applies to
statements made to probation officers which are later incorporated
into presentencing reports").

The government contends that the district court did not use Wash-
ington's statements to Sneberger in denying the section 3B1.2 reduc-
tion. It is true that Sneberger testified at the sentencing hearing to
more than just Washington's post-plea-agreement statements. For
example, Sneberger recalled for the court the results of his indepen-
dent investigation into Washington's relevant conduct. Moreover, it
appears that the district court, in concluding that Washington was nei-
ther a minimal nor minor participant for purposes of section 3B1.2,
did credit that testimony to some extent by finding that Washington
operated "in the role of an ordinary drug dealer."

Nevertheless, the district court's further statements during the sen-
tencing hearing demonstrate a clear reliance on the conversations
Washington had with Sneberger after Washington had entered into his
plea agreement with the government. For example, when Sneberger
first testified about Washington's statement that he had distributed
more drugs than that to which he had stipulated in the plea agreement,
Washington's counsel immediately objected on the grounds the state-
ment could not be used pursuant to his client's plea agreement. In
overruling the objection, the district court stated that "what [Washing-
ton] told the probation officer about [his role in the total conspiracy]
is certainly important for me to know." Moreover, when it ultimately
ruled on the motion for a reduction in the offense level pursuant to
section 3B1.2, the district court expressly referred to Washington's

                    5
"follow-up conversation with Mr. Sneberger." Citing that conversa-
tion, the court stated that "[b]ased on what was said, I cannot ignore
it and grant your defendant a two-level reduction for a minor role."
We think these statements by the district court lead ineluctably to the
conclusion that it improperly relied on the protected statements made
by Washington in determining his offense level and, thus, his guide-
line range.

We have twice before held the government to promises that state-
ments made by cooperating defendants would not be used in deter-
mining guideline ranges. In Fant, we held that statements made to
probation officers after the execution of such a plea agreement could
not form the basis for a section 3C1.1 enhancement for obstruction of
justice. 974 F.2d at 564-65. And in United States v. Malvito, 946 F.2d
1066, 1068 (4th Cir. 1991), we held that a district court could not
deny a defendant a downward departure based on "self-incriminating
information provided by the defendant under an express governmental
promise not to use it against him." The district court's reliance on
comments Washington made to Sneberger after the execution of the
plea agreement constituted a similar breach of Washington's agree-
ment, and is specifically forbidden by U.S.S.G.§ 1B1.8. We therefore
vacate Washington's sentence and remand for resentencing to allow
the district court to determine, without the assistance of Washington's
statements to Sneberger, whether Washington deserves a role reduc-
tion pursuant to section 3B1.2.

III.

We next address Davis' challenges to his sentence. He first con-
tends that the amended lab report was not sufficiently reliable for the
district court's consideration. We disagree. The district court found by
a preponderance of the evidence that the amended lab report was reli-
able. That determination was not clearly erroneous. See United States
v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994) (court applies clearly
erroneous standard to factual determinations in sentencing).

Davis fails to articulate a single concrete challenge to the amended
report, choosing instead to raise a host of potential shortfalls that he
cannot prove. For example, Davis objects to the reliability of the
amended report because it fails to indicate whether the cocaine was

                     6
retested or even still existed. This challenge, like Davis' other attacks,
might have proven relevant had Davis called the forensic scientist as
a witness and attempted to impeach her credibility. He did not. Davis
also did not testify on his own behalf as to whether the substance
found in his car contained cocaine base. The district court examined
Sneberger regarding his interaction with the Pennsylvania State Police
laboratory and in the end chose to rely on the laboratory's formally
issued report. We find no reason to doubt the district court's confi-
dence in the amended report and therefore reject Davis' first chal-
lenge.*

Davis also poses a constitutional objection to his sentence because
of the probation officer's investigation into the specific makeup of the
cocaine substance found in his possession in May 1995. Davis con-
tends that Sneberger conducted an investigation"arguably more thor-
ough than that performed by the United States." As the probation
officer is an agent of the court, Davis argues that Sneberger's alleg-
edly overzealous investigation placed the court in the role of prosecu-
tor and judge, thereby violating the constitutional principle of
separation of powers. We find Davis' argument meritless.

Davis does not urge us to hold that probation officers can never
conduct investigatory activities because of their affiliation with the
judicial branch. This concession is wise, as the investigation by pro-
bation officers of criminal defendants' backgrounds is ancillary to the
courts' determination of appropriate, individualized sentences. See
Williams v. New York, 337 U.S. 241, 249-50 (1949). In performing
such a role, the probation officer does not act in a prosecutorial func-
tion: "Throughout the process of interviewing a defendant, preparing
a presentence report, and discussing the report during a presentence
conference with the court, a probation officer continues to be a neu-
tral, information-gathering agent of the court, not an agent of the
_________________________________________________________________
*Davis ultimately complains that the amendment to the laboratory
report increased his sentence by approximately fifty months. Any unfair-
ness Davis would have suffered, however, was mitigated when the dis-
trict court went beyond the requirements of the plea agreement and
offered Davis a chance to withdraw his guilty plea. Cognizant of the
increased sentence, Davis nevertheless declined and elected to stand by
his plea.

                     7
prosecution." United States v. Johnson, 935 F.2d 47, 49-50 (4th Cir.
1991). Thus, courts have rejected separation-of-powers objections to
the role of probation officers under the sentencing guidelines. See
United States v. Woods, 907 F.2d 1540, 1543-44 (5th Cir. 1990);
United States v. Belgard, 894 F.2d 1092, 1096-98 (9th Cir. 1990).

Davis, however, advances a more nuanced argument. He claims
that by allegedly going beyond the bounds of normal investigation,
Sneberger crossed the line between neutral probation officer and pro-
secutorial advocate. We disagree. Sneberger simply sought out all
available information that would prove relevant to the district court's
sentencing proceeding, as it was his job to do. That Sneberger ques-
tioned the general findings of the original lab report on the basis of
the physical descriptions contained therein shows only that he per-
formed his investigatory duty well. Similarly, the fact that he ulti-
mately recommended a higher amount of drugs than the government
originally believed to be involved does not prove that Sneberger acted
in a prosecutorial capacity. Accuracy is the first principle of the sen-
tencing process, and if the government's information was inaccurate,
it should have been corrected.

A similar claim was advanced in Woods. There, a criminal defen-
dant claimed a probation officer acted in a prosecutorial capacity
because that officer recommended a higher quantity of drugs than that
to which the prosecutor had stipulated. 907 F.2d at 1544. The Fifth
Circuit rejected that suggestion, finding instead that the probation
officer's action demonstrated his "independence of the prosecution
and his obligation to recommend what he believes to be a correct sen-
tence to the court." Id. We agree with the holding in Woods, and
accordingly reject Davis' separation-of-powers challenge here.

IV.

For the foregoing reasons, we vacate Washington's sentence in No.
97-4235 and remand for resentencing to allow the district court to
consider, without the use of Washington's protected statements to his
investigating probation officer, whether Washington deserves any
reduction in his offense level pursuant to U.S.S.G.§ 3B1.2. We
affirm the judgment of the district court with respect to Davis' sen-

                    8
tence in No. 97-4246.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

                   9
