
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1492                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JAMES TAVANO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Kimberly Homan, with  whom Sheketoff &  Homan was on  brief,               ______________             __________________          for appellant.               Brien T.  O'Connor, Assistant  United States  Attorney, with               __________________          whom A. John  Pappalardo, United States  Attorney, was on  brief,               ___________________          for appellee.                              _________________________                                  December 29, 1993                              _________________________                    SELYA,  Circuit  Judge.   This  appeal  requires  us to                    SELYA,  Circuit  Judge.                            ______________          clarify a sentencing court's obligations in resolving evidentiary          disputes over  drug quantity.   Because  we understand the  court          below to have  fashioned a per se rule  giving controlling effect                                     ___ __          to  trial testimony,  come what  may, and  because the  court, in          fidelity to  its self-hewn  rule, did  not meaningfully  consider          conflicting  evidence  proffered   by  the  defense,   we  vacate          appellant's sentence and remand for resentencing.          I.  BACKGROUND          I.  BACKGROUND                    We  bifurcate our  account  of  what transpired  below,          first  elucidating  the  sequence of  relevant  events,  and then          placing an interpretive gloss on those events.                             A.  The Sequence of Events.                             A.  The Sequence of Events.                                 ______________________                    A jury found defendant-appellant James Tavano guilty of          conspiring  to possess  cocaine  with  intent  to  distribute  in          violation  of 21  U.S.C.    846  (1988).   Dissatisfied with  the          outcome,  appellant engaged new  counsel.  The  probation officer          proceeded to compile  the presentence  investigation report  (PSI          Report).                    On  February 11,  1993,  the PSI  Report  emerged.   It          adopted the prosecution's  version of the crime,  concluding that          appellant's relevant conduct encompassed between five and fifteen          kilograms of  cocaine.  Appellant's  new lawyer objected  to this          conclusion and, on March 15, 1993, sent a letter to the probation          officer spelling out discrepant representations in the grand jury                                          2          testimony   concerning  the   size  and   frequency   of  certain          transactions.1  The  attorney argued that the  proffered evidence          cast the trial testimony into disrepute and, moreover, giving the          proffered  evidence  its   due,  appellant  could  not   be  held          responsible  for  more  than  three  and  one-half  kilograms  of          cocaine.2  The prosecutor promptly fired  off a detailed rebuttal          letter under date of  April 9, 1993.   The probation officer,  in          turn,  attached a brief addendum to the PSI Report, stating:                    After review  of the  materials submitted  by                    both the  defense  and  the  government,  the                    probation office feels  that the calculations                    originally submitted in the  [PSI] Report are                    correct and accurately reflect the amount  of                    cocaine for which the  defendant can be  held                    accountable.  The report is unchanged.                    The district  court convened a  disposition hearing one          week  later.    Here follows,  at  length,  the  crucial exchange          between defense counsel and the judge:                      COUNSEL:   I'd  like to  say  that I  think                    perhaps  the thing to do  in this case is not                    to sentence,  but perhaps take some  time and                    have  one of your clerks maybe go through [my                    March 15] submission.                      JUDGE:  No.  No.  I don't want  to do that.                                        ____________________               1By  and  large,  this testimony  originated  from  the same          sources,  and referred  to the  same transactions,  as  the trial          testimony  on which  the probation  officer  and the  prosecution          relied.               2The prize at stake in  the battle over drug quantity  is no          mere  bagatelle.   If  five  or  more  kilograms of  cocaine  are          properly attributable to  Tavano, he  is subject  to a  mandatory          minimum  prison   term   of   ten   years,  see   21   U.S.C.                                                          ___          841(b)(1)(A)(ii), as opposed  to a mandatory minimum  sentence of          five years  if his  alternative calculation  is credited, see  21                                                                    ___          U.S.C.     841(b)(1)(B)(ii).   Tavano's  base  offense  level and          guideline sentencing range are similarly affected.                                          3                    It is not the kind of thing I would do.                         I have just read, I think carefully, the                    government's statement,  which is  helpful in                    refreshing   my  recollection   as  to   what                    happened at the  trial.  You weren't  here at                    the   trial,  although   you  did   read  the                    transcript, and I think what [the prosecutor]                    says is accurate.                      COUNSEL:   Your Honor, it  may be  accurate                    but                        JUDGE:  I  don't think that I can go beyond                    that.   In  other words,  I  think what  your                    point is,  is that  if I  consider the  grand                    jury   testimony,   if   I   consider   prior                    inconsistent  statements, I  can  come out  a                    different way, but I don't think that is what                    I do.                         It seems people come  to court and  they                    testify.   This  is the  dough  issue, so  to                    speak,  as you  well  know,  and  it  is  the                    evidence  that  is  presented at  trial  that                    controls; and, even in  the most conservative                    efforts  to  try  to make  sure  there  is no                    double charging against your client, he comes                    out well above the amount that is necessary.                      COUNSEL:  I don't think that is true.                      JUDGE:  I am not saying I am right.  I hope                    I am right.                      COUNSEL:  . . . I say that you have a right                    to look at both of these testimonies and make                    the decision as to what the weight was.                                  *       *       *                      JUDGE:  . . .  You didn't try the case, and                    I didn't try the case.   I presided, and  you                    were somewhere  else.   But I  do think  that                    what should  control is the evidence  that is                    presented at trial.  That is where everything                    gets shaken down.                         I   think   that    [the   prosecutor's]                    statement  of  what  took place  at  trial is                    reasonably presented  in  this  April 9, 1993                    submission .  . .;  and for  purposes of  the                                          4                    record,  I  will  adopt his  statement  as my                    findings.   If I  have made  a mistake,  then                    that gives you  a very clear shot  on appeal.                    That is what I am trying to do.                    Following this exchange, the court selected a guideline          sentencing  range  on the  basis  of its  finding  that appellant          handled  between five  and  fifteen  kilograms  of  cocaine,  and          sentenced appellant  to a prison term of 121 months (the nadir of          the chosen range),  capped by five  years of supervised  release.          On the order  of judgment form, the court  indicated its adoption          of the findings suggested in the PSI Report.  This appeal ensued.                       B.  Interpreting the Sequence of Events.                       B.  Interpreting the Sequence of Events.                           ___________________________________                    Before appellate review can proceed, it is necessary to          clarify exactly what  the district judge did and  exactly what he          did not  do.  We are  guided in this  endeavor by the record    a          record  that flavors the judge's words and, concomitantly, offers          insights into his thinking.                    Appellant's principal  complaint on appeal  is that the          district  court enunciated an  ironclad rule holding  that, where          witnesses'  trial testimony  and their  other  statements on  the          issue  of   drug  quantity   conflict,  the   former  necessarily          controls.3   We  think  this  is an  accurate  assessment of  the          district  court's position.   For  one thing,  the judge  himself          repeatedly stated as much.  He said, for example:  "I don't think          that I  can go beyond  [the evidence at  trial]. .  . .   I don't          think that  [considering inconsistent  statements  made prior  to                                        ____________________               3Appellant also attacks the adequacy of the district court's          findings.  That attack fails.  See infra Part II(B).                                         ___ _____                                          5          trial] is what  I do. . . .    [I]t is   the  evidence   that  is          presented  at  trial  that controls. . . .  [W]hat should control          is  the  evidence  that  is  presented  at  trial."    These  are          categorical  pronouncements   reflecting  careful   thought,  not          statements in  any way  qualified or  specially  tailored to  the          facts  of the  case.4   While some  individual phrases,  taken in          isolation,  may  be   either  ambiguous  or  subject   to  benign          explanation, the cumulative  import of these statements,  read in          context, is unmistakable.                    For  another thing, the judge's actions speak as loudly          as his words    and they speak to  the same end.  Insofar  as the          record  reflects,  the judge  never  read  or,  at  least,  never          analyzed,  the   defense's  submission,  presumably   because  he          regarded  it as  irrelevant.   In  contrast, the  judge read  the          government's submission on the  bench and credited it  because it          jibed with his recollection of  the trial testimony.  Of critical          importance, the judge  did not act as  if he were making  a case-          specific  ruling:  he neither compared the arithmetical soundness          of   the   competing   drug   quantity   calculations  nor   made          particularized credibility determinations.                    Third,  the district court's  formal findings are  of a          piece with our  reading of the sentencing transcript.   The court          eschewed any  detailed, independent  findings, but,  rather, made                                        ____________________               4This  is not  a situation  involving a  simple slip  of the          tongue or  an "awkward locution."   Lenn v. Portland  Sch. Comm.,                                              ____    ____________________          998 F.2d 1083, 1088 (1st  Cir. 1993) (collecting cases).  Rather,          this  case  features  a studied  course  of  action, thoughtfully          undertaken and repeatedly articulated.                                          6          what appear  to be implicit findings.   On the  order of judgment          form, the court adopted the recommended findings contained in the          PSI Report.   These  findings included,  of course, the  proposed          findings presented in the government's April 9 letter   a missive          premised solely  on trial  testimony, summarily  approved by  the          probation  officer, and  eventually  appended  to  the  order  of          judgment form.                    Fourth, the lack of  comparative analysis and  detailed          findings gains added  significance when it  is viewed in  concert          with the  judge's avowed uncertainty  about the propriety  of his          actions.   If the court  were making  a fact-specific  comparison          based on  demeanor evidence    a humdrum  exercise    rather than          pronouncing a neoteric rule of  law, there would have been little          point in "trying" to set the  stage to give Tavano "a very  clear          shot on appeal."                    We are  obliged to  review a trial  court's actions  as          they are made  manifest in the record, cf.  Advance Fin. Corp. v.                                                 ___  __________________          Isla  Rica  Sales,  Inc.,  747   F.2d  21,  26  (1st  Cir.  1984)          ________________________          (acknowledging that "the  district court speaks to  [the court of          appeals]  primarily  through  its  decrees");  and,  while   word          processing is  incapable of  fully reproducing  the thickness  of          reality,   we  are  confident  that,  here,  the  district  court          formulated  a per se rule declaring trial testimony determinative                        ___ __          of drug quantity, to the  exclusion of all other evidence bearing                                          7          upon  the  same  set  of  transactions.5    We  proceed  on  that          understanding.          II.  DISCUSSION          II.  DISCUSSION                    Having  satisfied ourselves  as to  the  import of  the          record, we summarize  the legal principles that allow  us to test          the  soundness of the  lower court's rationale  and, accordingly,          govern the disposition of this appeal.  Next,  we set some allied          concerns to rest.   At journey's end, we apply  the discerned law          in light of what transpired below.                           A.  Applicable Legal Principles.                           A.  Applicable Legal Principles.                               ___________________________                    A  number of  other  tribunals  have  had  occasion  to          emphasize  the obligation that  devolves upon a  sentencing court          presented  with conflicting drug quantity evidence to review that          evidence  and exercise independent  judgment.  See,  e.g., United                                                         ___   ____  ______          States v.  Goines,  988 F.2d  750,  775 (7th  Cir.)  (admonishing          ______     ______          courts  to "resist  the  urge to  accept  summarily the  quantity          alleged by the government"), cert. denied, 114 S. Ct. 241 (1993);                                       _____ ______          United States  v. Gilliam,  987 F.2d 1009,  1013 (4th  Cir. 1993)          _____________     _______          ("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.");                                        ____________________               5Even  if  there  were room  for  an  objectively reasonable          division of opinion  on what the judge  intended   and we  see no          such room here   it is apparent that the ends of justice are best          served  by giving appellant the benefit of any doubt.  Cf., e.g.,                                                                 ___  ____          Bifulco v.  United States, 447  U.S. 381, 387  (1980) (discussing          _______     _____________          applicability of rule of lenity to ambiguous criminal statutes).                                          8          United  States v.  Collado,  975  F.2d 985,  998  (3d Cir.  1992)          ______________     _______          (explaining  that a "sentencing  court must carefully  review the          government's  [drug  quantity]  submissions to  ensure  that  its          estimates are proven  by a preponderance of the evidence").  In a          case that  bears haunting  similarities to the  case at  bar, the          Sixth  Circuit vacated a defendant's sentence because it appeared          possible  that the district judge placed the jury's drug quantity          findings  on  a  pedestal  and treated  them  as  controlling  at          sentencing,  without  independent  analysis   of  other  relevant          evidence.  See United States v.  Prior, 941 F.2d 427, 430-31 (6th                     ___ _____________     _____          Cir.), cert. denied, 112 S. Ct. 613 (1991).  Such a per se  rule,                 _____ ______                                 ___ __          Chief  Judge Merritt wrote, would  defile the principle that "the          sentencing   judge   must   exercise  independent   judgment   in          sentencing."  Id. at 431.                        ___                    We, too, recognize that  the district court has  a duty          to  consider all relevant  drug quantity evidence  at sentencing,          even if that evidence is from the same sources as, and  conflicts          with, evidence  adduced at  trial.  In  the final  analysis, this          duty derives from the Due  Process Clause, which guarantees every          defendant a "right to be  sentenced upon information which is not          false or  materially incorrect."   United  States v. Berzon,  941                                             ______________    ______          F.2d  8, 18 (1st Cir. 1991);  accord United States v. Curran, 926                                        ______ _____________    ______          F.2d 59, 61  (1st Cir. 1991).   To give content to this  right, a          court must take pains to base  sentencing judgments upon reliable          and accurate  information.   See Berzon, 941  F.2d at  18; United                                       ___ ______                    ______          States v.  Prescott, 920 F.2d  139, 143 (2d  Cir. 1990).   And to          ______     ________                                          9          assure itself that  a piece of proof is  sufficiently reliable, a          court  must  consider  all   the  available  evidence,  including          conflicting evidence.                    The  Criminal Rules  are designed  to  nourish the  due          process right  to be  sentenced based  on substantially  accurate          information.   See  Curran,  926  F.2d at  61;  United States  v.                         ___  ______                      _____________          Gerante, 891 F.2d  364, 367  (1st Cir. 1989).   Thus, a  district          _______          court confronted with  an alleged error of fact  in a presentence          report must make either  "(i) a finding as to  the allegation, or          (ii) a  determination that no  such finding is  necessary because          the  matter  controverted  will  not  be  taken  into account  in          sentencing."    Fed. R.  Crim.  P. 32(c)(3)(D);  see  also United                                                           ___  ____ ______          States v. Wells Metal Finishing, Inc.,  922 F.2d 54, 58 (1st Cir.          ______    ___________________________          1991)  (collecting  cases).   The  federal sentencing  guidelines          slant in the same direction and, to that extent, also nourish the          due process right:                    When any  factor important to  the sentencing                    determination is  reasonably in  dispute, the                    parties   shall   be    given   an   adequate                    opportunity  to  present information  to  the                    court  regarding that  factor.   In resolving                    any  reasonable dispute  concerning a  factor                    important  to  the  sentencing determination,                    the court  may consider  relevant information                    without regard to its admissibility under the                    rules  of   evidence  applicable   at  trial,                    provided that the  information has sufficient                    indicia   of  reliability   to  support   its                    probable accuracy.          U.S.S.G.  6A1.3 (Nov. 1992).   In our estimation,  this provision          not only requires  sentencing courts to afford defendants  a fair          opportunity  to   present  information  relevant   to  sentencing                                          10          (including  information at  variance with  trial  testimony), but          also requires courts to mull any information adduced.                    The  government  asserts  that  section  6A1.3  cuts  a          narrower swath.   It notes  that, in terms, the  policy statement          mandates only presentation of conflicting evidence;  the language                        ____________          mentioning  evaluation  of  such  evidence  ("may  consider")  is          permissive   and,  therefore,   the  government   says,  judicial          consideration of presented material is in the court's discretion.          _____________          We  reject this  now-you-see-it, now-you-don't  prestidigitation,          for  neither the government's hocus-pocus nor its crabbed reading          of  section 6A1.3  make any  real sense.   Drawing  an artificial          distinction  between presentation and  consideration    much like          drawing a distinction between the opportunity to be heard and the          opportunity  to  be  listened  to     reduces  the  guideline  to          gibberish,  stripping it  of its  essential meaning.   We  do not          think the Sentencing Commission, in drafting section 6A1.3, could          possibly  have  meant   to  give  defendants  such   cold  gruel,          pretending to confer a benefit,  yet, simultaneously, withholding          the  benefit's intrinsic  value.   Indeed, with  this reality  in          mind,  we have already interpreted section  6A1.3 to "require the                                                                _______          sentencing court to  make an independent  determination regarding          the  reliability of all  proffered evidence."   United  States v.                                                          ______________          Zuleta-Alvarez,  922  F.2d  33,  36  (1st  Cir.  1990)  (emphasis          ______________          supplied), cert. denied, 111 S. Ct. 2039 (1991).6                     _____ ______                                        ____________________               6Although we did  not at the  time justify this  requirement          with specific reference to the  text of section 6A1.3, we believe          that it  may fairly  be inferred,  both as  a gloss  on the  word                                          11                    The duty  to consider  evidence conflicting with  trial          testimony takes on special urgency in the drug  quantity context.          Though sentencing judges  may look to  trial testimony when  they          adjudicate factual disputes ancillary to  sentencing,7 see, e.g.,                                                                 ___  ____          United States v. Ruiz,  905 F.2d 499, 508 (1st Cir.  1990), there          _____________    ____          are at least  two good reasons to be  skeptical of total reliance          on trial testimony in this context.  First, under the guidelines,          drug  quantity is  a factor  of extraordinary  importance to  the          sentencing calculus.  See United States v. Morillo, ___ F.3d ___,                                ___ _____________    _______          ___ (1st  Cir. 1993)  [No. 93-1388, slip  op. at  12] (explaining          that "drug quantity profoundly affects sentence length," with the          result that "relatively small quantitative differences often have          a  significant leveraging effect" in respect to sentence length);          United  States v.  Bradley, 917  F.2d  601, 604  (1st Cir.  1990)          ______________     _______          (describing  drug  quantity  as  "a  key  datum"  in  determining          sentences of drug traffickers).  It is, therefore, imperative for          a  sentencing court  to shine  a  very bright  light on  possible          answers to  the drug  quantity  inquiry.   Second, drug  quantity          testimony, even if  subject to reasonable dispute, is  not apt to          be   challenged  vigorously   at   trial,  for   defendants   are                                        ____________________          "adequate"  (in the phrase "adequate opportunity to present") and          as the only  policy consistent with the guideline's  spirit.  The          opportunity  to present information  could hardly be  regarded as          "adequate" if the court retained  the power to file the presented          information away, sight unseen, and continue blithely on its way.               7We  refer here  to the  mine-run  of cases;  there are,  of          course,  special situations in which reliance on particular trial          testimony may be  inappropriate.  See, e.g., Berzon,  941 F.2d at                                            ___  ____  ______          20.                                          12          understandably  wary of conceding culpability before the jury and          often prefer  to pitch their case  on bedrock issues of  guilt or          innocence.   See United States  v. Valencia-Lucena, 988 F.2d 228,                       ___ _____________     _______________          232 (1st Cir.  1993); Zuleta-Alvarez, 922 F.2d at 36.  Thus, drug                                ______________          quantity, by its nature,  is likely to be a "factor  important to          the sentencing determination,"  and, even after trial,  is likely          to remain "reasonably  in dispute."  U.S.S.G.  6A1.3.   These are          precisely  the  circumstances  under which  a  timely  request to          consider conflicting evidence must be honored.                    To sum up, we hold, consistent with the dictates of due          process,  that both  Fed.  R. Crim.  P. 32(c)(3)(D)  and U.S.S.G.           6A1.3  require  a  sentencing  court  independently to  consider          proffered  information that is relevant to matters of consequence          in the  sentencing determination.   In cases where  drug quantity          qualifies  under  this rubric,  a reviewing  court is  obliged to          consider all available evidence having probative value, including          but not limited  to witnesses' prior inconsistent  statements and          other proof contradicting witnesses' trial testimony, and to pass          independent judgment thereon.                             B.  Allied Legal Principles.                             B.  Allied Legal Principles.                                 _______________________                    In    the    interest    of    avoiding   any    future          misunderstandings,  we  wish  to  clarify  three  allied  points.          First,  a trial  judge's duty  to  consider conflicting  evidence          seasonably  presented during  the  sentencing  phase  in  no  way          implies a duty of blind acceptance.  When all is said and done, a          judge,  after examining all the relevant evidence, may ordinarily                                          13          pick  and choose.   And  in the  process,  the judge  may decide,          because of  its persuasive  force in a  particular case,  to fall          back upon, and ultimately to credit, trial testimony.                    Next,  we  summarily  dismiss  appellant's  claim  that          either  the duty of  independent consideration or, alternatively,          Rule 32, implies a duty of  free-standing articulation.  Explicit          findings,   while  often  desirable,  are  not  indispensable  in          connection  with drug  quantity issues.8   As  a general  rule, a          trial court lawfully  may make implicit  findings with regard  to          sentencing matters, incorporating  by reference suitably detailed          suggestions limned in the PSI Report or advanced by a party.  See                                                                        ___          United States v. Savoie, 985 F.2d 612, 620 (1st Cir. 1993); Wells          _____________    ______                                     _____          Metal, 922  F.2d at  58.   That practice  is permissible  in drug          _____          cases as  in other cases.9  See,  e.g., United States v. Barnett,                                      ___   ____  _____________    _______          989 F.2d 546, 551-52  & n.5 (1st Cir.), cert. denied,  114 S. Ct.                                                  _____ ______          148 (1993); United States v. Cruz, 981 F.2d 613, 618-19 (1st Cir.                      _____________    ____          1992); Gerante, 891 F.2d at 367.                 _______                    Finally, we  do not mean  to suggest that a  court must          always resolve every controversy that  touches upon the amount of          drugs involved in an  offense, scheme, or course of  conduct.  It          is unnecessary to address a dispute over drug quantity if, and to          the  extent that, adjudicating  it will not  alter the applicable                                        ____________________               8We see nothing  in our opinion in United  States v. Hanono-                                                  ______________    _______          Surujun,  914  F.2d 15,  19  (1st  Cir.  1990), much  bruited  by          _______          appellant, that compels a different conclusion.               9On  this basis,  we reject  appellant's  argument that  the          court below transgressed Rule 32  by the use of implicit findings          in respect to drug quantity.                                          14          offense level, influence the guideline sentencing range, or bring          a  different mandatory minimum sentence into  play.10  See, e.g.,                                                                 ___  ____          Bradley, 917 F.2d at 604.          _______                                 C.  The Bottom Line.                                 C.  The Bottom Line.                                     _______________                    The principles we have discussed are dispositive of the          instant  appeal.     Although  a   sentencing  court's  factbound          determination of  drug quantity  is usually  reviewable only  for          clear error, see id. at  605, judgments concerning the applicable                       ___ ___          rules of  law are subject  to plenary review.   See Morillo,  ___                                                          ___ _______          F.3d at ___  [slip op. at 14]; see also United States v. St. Cyr,                                         ___ ____ _____________    _______          977  F.2d 698,  701  (1st  Cir. 1992)  (holding  that, under  the          guidelines, claimed  mistakes of law  are reviewed de novo).   In                                                             __ ____          this case,  we conclude  that the lower  court lapsed  into error          when it  formulated a  per se rule  and refused  independently to                                 ___ __          consider evidence at  variance with  trial testimony.   Since  we          cannot say  with fair assurance  that the mistake did  not affect          the outcome, resentencing is required.          III.  CONCLUSION          III.  CONCLUSION                    We need go no further.  For the reasons stated, we hold          that  the  district  court  erred  in  failing  independently  to                                        ____________________               10To  illustrate,  if  the  present  controversy  over  drug          quantity boiled down to the difference between, say, six and nine          kilograms of cocaine,  the court would not be  obliged to resolve          it.    Either  way, the  offense  level  would be  the  same, see                                                                        ___          U.S.S.G.   2D1.1(c)(6)  (Drug  Quantity  Table) (setting  offense          level  for  offenses involving  5  or  more,  but less  than  15,          kilograms  of cocaine), the  sentencing range would  be the same,          cf. id.,  and the mandatory  minimum sentence would be  the same,          ___ ___          see  21  U.S.C.     841(b)(1)(A)(ii)  (fixing obligatory  minimum          ___          sentence for offenses involving 5 or more kilograms of cocaine).                                          15          scrutinize   proffered  evidence   conflicting  with   the  trial          testimony  anent drug quantity.11   Hence, we  vacate appellant's          sentence and remand for a  new sentencing hearing and for further          proceedings consistent with this opinion.          It is so ordered.          It is so ordered.          ________________                                        ____________________               11We  venture   no  opinion   as  to   whether,  after   due          consideration, the  disputed trial  testimony  should (or  should          not) be  credited in  this instance.   We similarly  refrain from          commenting  upon  what  drug   quantity  is  most   appropriately          attributable to appellant.  Those  matters are for the nisi prius                                                                 ____ _____          court.                                          16
