UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

LEONARD NORMIL, III, a/k/a Colin
                                                                     No. 94-5830
Courtney Henderson, a/k/a Jamaican
Tony, a/k/a Tony Henderson, a/k/a
Colin Courtney Atwell,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 94-5848

DAVID ANTHONY HENDERSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, District Judge.
(CR-93-62-BO)

Argued: July 18, 1996

Decided: November 13, 1997

Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded for resentencing by unpublished opinion.
Judge Ervin wrote the opinion, in which Judge Murnaghan and Senior
Judge Phillips joined.
COUNSEL

ARGUED: Paul K. Sun, Jr., SMITH, HELMS, MULLISS &
MOORE, L.L.P., Raleigh, North Carolina, for Appellants. John
Douglas McCullough, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: Carl L. Epstein, Indianap-
olis, Indiana, for Appellant Normil. Janice McKenzie Cole, United
States Attorney, Ted F. Mitchell, Third Year Law Student, Raleigh,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Leonard Normil, III and David Anthony Henderson challenge their
sentences following convictions for offenses in connection with a
drug distribution conspiracy in New Bern, North Carolina. For the
reasons that follow we vacate their sentences and remand both cases
to the district court for further proceedings consistent with this opin-
ion.

I.

In May 1990, the City of New Bern Police Department and the
Drug Enforcement Administration (DEA) began a joint investigation
of a drug distribution conspiracy involving Normil, Henderson, and
others. On September 1, 1993, officers stopped codefendant Valerie
Gibbs and discovered 53.9 grams of crack on her person. On Novem-
ber 30, 1993, DEA agents interviewed Valerie Gibbs concerning her
knowledge of the drug distribution activities of Normil, Henderson,
and others. Gibbs, acknowledged by the government to be a crack
addict, gave a statement to the government alleging that, on one occa-
sion, Normil and Henderson came to the home of her boyfriend--

                     2
codefendant Harold Pollock--with four bags of crack. (J.A. at 130-
31). She estimated that the bags were about the size of the package
she had when she was arrested: 53.9 grams. Gibbs also alleged that
Normil, codefendant Elvin Floris, or Henderson had come to Pol-
lack's home "on a daily basis" from September 1992 to September
1993, leaving multiple 1/16 ounce packages (about 2 grams). Gibbs'
statement to the government was never provided to Normil or Hen-
derson, and is not in the record. The U.S. Attorney who negotiated the
plea agreements was likewise unaware that Gibbs had made a state-
ment, although the statement was available to him had he known of
its existence.

In a fourteen-count superseding indictment issued December 7,
1993, appellants were charged--along with five other codefendants--
with conspiracy to possess with intent to distribute cocaine base, in
violation of 21 U.S.C. § 846; aiding and abetting the distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;
and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
Normil was also charged with engaging in a continuing criminal
enterprise, under 21 U.S.C. § 848; making a false statement on a pass-
port application, under 18 U.S.C. § 1542; fraud in connection with
identification documents, under 18 U.S.C. § 1028(a)(1); and making
a false representation as a citizen of the United States, under 18
U.S.C. § 911. Initially, both men pled not guilty to all charges.

On July 18, 1994, Normil pled guilty to Count Three, which
charged the distribution of crack and aiding and abetting the distribu-
tion, and Count Twelve, which charged the giving of false statements
in a passport application. Normil entered into a plea agreement in
which the estimated drug quantity was based upon the amount seized
or purchased by the government in its investigation--about 175
grams--triggering an initial base offense level of 34 (150-500 grams).1
_________________________________________________________________
1 In a letter dated September 13, 1994, addressed to Normil's counsel,
the U.S. Attorney stated, "This letter is to confirm our recent telephone
conversation wherein I confirmed to you that, at the time the plea agree-
ment was entered into, the parties contemplated that the government
could prove the defendant's involvement with 179.5 grams of cocaine
base. This figure represents the amount of cocaine base purchased or
seized from the participants in this conspiracy."

                    3
See U.S.S.G. § 2D1.1(c)(3). (J.A. at 48-52). The parties also agreed
to a three-level downward adjustment for acceptance of responsibility
under U.S.S.G. § 3E1.1. Normil thus reserved the right to appeal a
sentence exceeding level 31.

Similarly, on August 29, 1994, Henderson entered a guilty plea to
Count Six, which charged distribution of cocaine base and aiding and
abetting in the distribution. The parties stipulated that Henderson was
responsible for the amount of crack alleged in Count 6 (to which Hen-
derson was pleading guilty) and in Count 10--a total of 32.6 grams.2

Both plea agreements specified that the stipulations and recommen-
dations were not binding on the court:

           The Defendant acknowledges that the Level specified
          above is an estimate from information known at present. It
          is not a promise and is not binding on the Court. The Defen-
          dant agrees that should the sentence imposed exceed Level
          31, this would not affect the validity of the guilty plea, but
          merely would allow the Defendant to appeal the Guideline
          range.

            The Defendant understands . . . that the Court is not
           bound by any sentence recommendation or agreement as to
           Guideline application, that the sentence has not yet been
           determined by the Court, that any estimate of the sentence
           received from any source is a prediction not a promise, and
           that even if a sentence up to the statutory maximum is
           imposed, the Defendant may not withdraw the plea of
           guilty.
_________________________________________________________________
2 The stipulation was not contained in the plea agreement, but was later
memorialized in a separate document and filed with the district court.
(J.A. 63-7, 93-4). The stipulation specified that Henderson would "be
held responsible only for the amount of cocaine alleged in COUNTS SIX
and TEN of the Bill of Indictment, to-wit 6.9 grams as to COUNT SIX
and 25.7 grams as to COUNT TEN, and [ ][he] was in no way involved
in the violation set forth in COUNT THREE of said indictment." Count
Three charged a distribution and an aiding and abetting a distribution of
crack on June 10, 1993, involving Normil, Floris, Henderson, Harold
Pollack, and Valerie Gibbs.

                    4
The government reserved the right at sentencing to present any evi-
dence or information under 18 U.S.C. § 3661, and agreed not to "fur-
ther prosecute the Defendant[s] for conduct constituting the basis for
the Indictment."

Before sentencing, the government provided the Gibbs statement to
the probation office to be used in preparing the pre-sentence reports
(PSRs) for both Normil and Henderson. In calculating Normil's sen-
tence, the probation office began with Gibbs's statement that Pollack
received multiple two-gram packages of crack, took an average of
four grams per day, and multiplied it by every day between Septem-
ber 1, 1992 to August 1, 1993, arriving at a total amount of 1340
grams. In addition, based on Gibbs's statement about the four 53.9-
gram bags, the probation office added 215.6 grams. To that amount,
the probation office added 4690 grams based on information from
unidentified "investigative documents," estimating that seven other
street dealers involved in the conspiracy sold about two grams every
day from September 1992 to August 1993. Finally, the probation
office added the quantity actually seized or purchased by the
Government--174.9 grams--reaching a grand total of 6,420.5 grams
involved in the offense conduct. The new amount increased Normil's
base offense level to 40. Additionally, the probation officer recom-
mended a four-level upward adjustment for being an organizer and
leader in a criminal enterprise. U.S.S.G. § 3B1.1(a).

At Normil's sentencing hearing on October 17, 1994, Normil
objected to the drug quantity calculation on the ground that the gov-
ernment used evidence which it had failed to disclose at the time of
the plea. Normil also argued that the calculations and their sources
were unreliable. The district court asked the probation officer to
explain how he arrived at the offense quantity. In essence, the proba-
tion officer explained that the estimate was based upon the informa-
tion provided by Gibbs, as well as various unspecified investigative
documents. The court, observing that the probation officer had used
the most conservative figures and the most compact time period,
adopted the quantity contained in the PSRs. The court allowed a
three-level downward adjustment for acceptance of responsibility, and
imposed a two-level enhancement under U.S.S.G. § 3B1.1(c). Normil
was sentenced to 360 months' incarceration with five years' super-
vised release. In calculating Henderson's sentence, the probation

                    5
office reported that he sold crack on two occasions: he sold 6.9 grams
with codefendant Floris, and he sold 25.7 grams on another occasion.
Based on the Gibbs statement, the probation office used the same cal-
culus to hold Henderson accountable for at least 6,420.5 grams of
cocaine base. The probation office did not recommend an adjustment
for role in the offense. Nor did the office find a demonstration of
responsibility warranting a reduction under U.S.S.G.§ 3E1.1. Hen-
derson's total offense level was 38. The probation office's recommen-
dations were thus consistent with the stipulations in the plea
agreement that Henderson was not responsible for Count Three. J.A.
96-8, 101-2.

At Henderson's sentencing hearing on November 8, 1994, the dis-
trict court again accepted the calculations of the probation office
based on the Gibbs statement and the investigation documents.
Accordingly, the court found Henderson responsible for 6,420.5
grams. The court also found Henderson to be an organizer. Further,
the court denied Henderson a three-level reduction for acceptance of
responsibility, noting that the adjustment would have no effect on his
sentence, since he would still be at or above level 40. Henderson was
sentenced to 420 months' imprisonment, followed by five years'
supervised release. These appeals followed.

II.

Whether the district court improperly considered information at
sentencing is a question of law, to be reviewed de novo. United States
v. Daughtry, 874 F.2d 213, 217-18 (4th Cir. 1989). Plea bargains are
evaluated using contract principles, but are subject to greater scrutiny
because of the constitutional rights at stake. United States v. Ringling,
988 F.2d 504, 506 (4th Cir. 1994).

Normil and Henderson argue that the plea agreements and stipula-
tions precluded the district court from considering information which
the government did not disclose at the time of their plea bargains.
Normil argues that the commentary accompanying U.S.S.G. § 6B1.2
requires the government to disclose to a defendant all information to
be used in calculating the sentence.

           The Commission encourages the prosecuting attorney
          prior to the entry of a guilty plea or nolo contendre plea

                     6
          under Rule 11 of the Federal Rules of Criminal Procedure
          to disclose to the defendant the facts and circumstances of
          the offense and offender characteristics, then known to the
          prosecuting attorney, that are relevant to the application of
          the sentencing guidelines. This recommendation, however,
          shall not be construed to confer upon the defendant any right
          not otherwise recognized in law.

The Guidelines commentary, Normil and Henderson contend, "must
be treated as an agency's interpretation of its own legislative rule, and
as such, interpretive or explanatory commentary is authoritative
unless it violates the Constitution or a federal statute, or is inconsis-
tent with, or a plainly erroneous reading of, that guideline." United
States v. Carroll, 3 F.3d 98, 102 (4th Cir. 1993). When Normil and
Henderson agreed to plead guilty, they believed that the relevant con-
duct to be used at sentencing would result in an initial base offense
level of 34. But in fact, the government already had the statement of
Valerie Gibbs which would lead to estimated drug quantities of more
than 30 times the amount that the government indicated it could prove
against Normil. Normil and Henderson contend that they were thus
denied the ability to make a knowing decision regarding the probable
consequences of their guilty pleas. Accordingly, they contend, this
court should provide them the benefit of their bargains by confining
the sentence to 175 grams of relevant conduct--the amount disclosed
to them in the plea negotiations. While conceding that the negotiating
U.S. Attorney did not purposely withhold the Gibbs statement, and
indeed, was unaware of that evidence, Normil and Henderson argue
that if the government is not required to disclose all of its evidence
of relevant conduct at the time of the plea bargain, prosecutors may
deliberately withhold such information and "blind-side" defendants.

Normil and Henderson also argue that the government, by relying
upon the additional information provided to the probation office, vio-
lated the provision of the plea agreement in which it agreed not to fur-
ther prosecute the defendants for conduct constituting the basis for the
indictment. To the extent that a stipulation entered by the government
is essential to the defendant's bargain, it is binding. Santobello, 404
U.S. at 262. This is true even if the court is not bound by the stipula-
tion. U.S.S.G. § 6B1.4(d), p.s. Thus, they contend that, although the
sentence is estimated and subject to the court's discretion, the govern-

                     7
ment is bound by its promise as to the quantity forming the basis for
the defendants' sentences. They rely upon United States v. Hewitt,
942 F.2d 1270 (8th Cir. 1991). In that case, the Eighth Circuit held
that the "no further prosecution" clause included information used for
sentencing, and remanded for resentencing with instructions to con-
sider only that information agreed to by the parties at the time of the
pleas.

Normil and Henderson also cite United States v. Tobon-Hernandez,
845 F.2d 277, 280 (11th Cir. 1988), in which the Eleventh Circuit
found:

           In this case, the government and Tobon-Hernandez
          entered into an explicit plea agreement which stipulated that
          the conspiracy charge related only to the 14 kilograms of
          cocaine found in the automobile. Such a stipulation may not
          have been required by law; such an agreement may not have
          been wise; but, the government agreed; the government is
          held to its agreements. As a direct result of the govern-
          ment's breach of the plea agreement through the introduc-
          tion of evidence relating to the kilograms of cocaine found
          in the house, the district court imposed a sentence on the
          conspiracy count involving an amount of cocaine greater
          than that stipulated to in the plea agreement.

The Tobon-Hernandez court likened the case to United States v.
Nelson, 837 F.2d 1519 (11th Cir. 1988), in which the government
entered into a plea agreement stipulating to certain facts, but submit-
ted a PSR stating facts contrary to those stipulated to in the agree-
ment. Id.

The government retorts that a sentencing court has broad discretion
to consider a wide range of information in arriving at its sentence,
including information contained in the PSR and crimes for which a
defendant has not been charged. The court is bound neither by the
sentencing recommendations of the government nor by the stipula-
tions contained in a plea agreement. The sentencing court's discretion
to consider a broad range of available information should not be con-
strained, the government argues.

                    8
However, this case is not a matter of constraining a trial judge's
access to information. Whether purposeful or not, the government
agreed to hold the defendants accountable for one amount, and then
presented to the court as the basis for sentencing offense conduct
amounts that were more than 30 times greater than that agreed upon.
Certainly, without knowledge of the existence of Gibbs's statement--
one of the primary bases for calculating the amount of cocaine--
Normil and Henderson could not make any kind of reasonably accu-
rate assessment of the costs and benefits of pleading guilty to the
charges. This sentencing denied Normil and Henderson the benefit of
their bargain, and was fundamentally unfair. We could follow the rea-
soning of the Eighth and Eleventh Circuits, and award Normil and
Henderson specific performance of their plea bargains. However,
because of the terms of the plea agreements in question and the pecu-
liar circumstances of these cases, we elect instead to vacate Normil
and Henderson's sentences and remand their cases to the district court
for re-sentencing in accordance with this opinion.

III.

The district court's determinations of facts underlying its applica-
tion of the sentencing guidelines are reviewed for clear error. United
States v. McManus, 23 F.3d 878, 882 (4th Cir. 1994).

The government was required to provide sufficient evidence to
prove by a preponderance of the evidence the drug quantities alleged
in the PSR. United States v. McManus, 23 F.3d 878, 885 (4th Cir.
1994). The government must offer more than "conclusory state-
ments," United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1992);
it must present evidence with "sufficient indicia of reliability to sup-
port its probable accuracy." U.S.S.G. § 6A1.3(a). p.s. United States v.
Gilliam, 987 F.2d 1009 (4th Cir. 1993).

Normil and Henderson challenge the information provided by the
probation office and relied upon by the district court, as uncorrobo-
rated, based on conjecture, and inherently unreliable. First, the proba-
tion office relied principally on the statement of informant Valerie
Gibbs. Based on her statement that her boyfriend Pollack received
drugs "on a daily basis," the office simplistically multiplied an esti-
mated 4 grams by 335 days (11 months), allowing for no days off and

                    9
overlooking the fact that Gibbs could not have seen such transactions
every day during that period. In addition, the office stated that "ac-
cording to investigative reports, the organization had at least seven
individuals in addition to Harold Pollack selling crack cocaine on a
street level. (J.A. at 131). The office estimated that each dealer sold
two grams every day for the eleven month period. The probation offi-
cer admitted that he had no specific information regarding how often,
for how long, and in what quantities the dealers sold drugs, but he
relied on the two gram estimate from Gibbs and the opinion of a nar-
cotics officer that two grams was reasonable. Finally, the probation
office relied on Gibbs's statement that Normil and Henderson came
to Pollack's house with "four big bags" of crack, which were about
the size of her own package. Normil and Henderson argue that the
description of "big" bags of crack is inconsistent with the comparison
to her own bag, which contained less than two ounces of crack.

In addition, Normil and Henderson assert that it was clear error to
accept without question the uncorroborated statement of Valerie
Gibbs, a known drug addict. They rely upon the decisions of other cir-
cuits calling for caution and close scrutiny of testimony by addict-
informants, such as United States v. Miele, 989 F.2d 659 (3d Cir.
1993). In that case, the Third Circuit reversed the district court's
unquestioning reliance on information provided from an
addict/informant. See also United States v. Robison, 904 F.2d at 371-
72 (6th Cir. 1990). In this case, the defendants argue, the court did not
make any effort to assess Gibbs's credibility. She was not brought in
to testify at the sentencing, and the court made no inquiries as to her
veracity. U.S.S.G. § 6A1.3(a), p.s.

The government argues that it does not bear the burden of proving
the accuracy and reliability of the PSRs. Rather, the defendant has an
affirmative duty to show that the information contained in the PSR is
unreliable or untrue. United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990). In the absence of such a showing, the sentencing court is
free to adopt the PSR's findings.

The bare and unsubstantiated opinion of a narcotics officer that two
grams is a reasonable estimate has no probative value. That leaves the
Gibbs statement and the "investigative reports." The information from
Gibbs is a flimsy nail from which to hang estimates. Above all, the

                    10
probation officer's and the district court's reliance on unidentified
investigative documents cannot possibly permit the district court to
find specific drug amounts by the greater weight of the evidence.3
And multiplying the estimated quantity by every day of the year does
not seem a conservative estimate. Even though the standard of review
is quite deferential, we hold that the district court's findings that each
defendant should be held responsible for 6,420.5 grams of cocaine
base cannot be sustained by the meager record before us. Accord-
ingly, the sentences are vacated and the defendants are granted new
sentencing hearings.

IV.

A.

To assist the district court at re-sentencing, we offer these addi-
tional observations. At sentencing, the court asked the probation offi-
cer to explain Normil's role in the offense. The probation officer
testified that the role in the offense enhancement was based upon the
statement of Gibbs:

          The Court: Just tell me about his role in the offense.

          Mr. Boggs: Basically, Your Honor, he worked with Mr.
          Floris and Mr. Henderson on an equal basis to distribute
          drugs in the Duck Hill area of New Bern. Okay, he was a
          leader of this conspiracy as outlined in the indictment.
          Count 2 of the indictment, he was identified as being the
          leader of this criminal conspiracy.

        The Court: What does that mean? I mean what did he do
        to be the leader? Did he have an army and have formation
        and give them orders?
_________________________________________________________________

3 We emphasize the fact that the probation office used these "unidenti-
fied investigative documents" as the sole basis for its assertion that 4,690
grams (out of a total of 6,420.5 grams) of crack should be attributed to
each defendant.

                     11
          Mr. Boggs: No, Your Honor.

          The Court: Did he make trips to New York and buy suit-
          cases full of cocaine and fly it down here? Tell me some-
          thing about it.

          . . . I know what his role in the offense was. He had more
          than five folks that worked for him including--

          . . . They were distributing drugs. They were transporting
          drugs. Valerie Gibbs' role primarily was not to sell drugs
          but to transport drugs at Mr. Normil's direction to the home
          of Ronnie Pollack. Mr. Normil would often bring drugs into
          the home of Harold Pollack.

          . . . But basically he brought drugs into the community. He
          hid the drugs in various places and he hid money in various
          places including out in Mr. Pollack's yard and various
          ditches, also out in the woods. And the crack cocaine which
          was seized by officers, the 27.1 grams of crack that Valerie
          Gibbs led the officers to was concealed in the woods. They
          had received confidential information that Mr. Normil was
          concealing the drugs out in the woods and they had set up
          surveillance early one morning and observed him bring the
          drugs out, go into the home of Harold Pollack. The drugs
          were then given to Valerie Gibbs. Valerie Gibbs left the
          home and transported drugs to Ronnie Pollock's home, and
          Mr. Normil followed at a distance but was with her. And
          then, of course, she was arrested and taken back and they
          seized additional drugs and then she began to cooperate.

(J.A. at 80-81). Based on the probation officer's testimony, the court
imposed a two-level increase for manager, organizer or supervisor.

The government contends that this testimony meets the preponder-
ance of the evidence standard. It argues that the defendants were basi-
cally street drug dealers who sold individually, but would
occasionally associate. There was no evidence to show that Normil
played the role of a leader over five people, or participated in greater

                    12
amounts of the proceeds. The probation officer offered conclusory
statements that Normil was a leader, and then testified that Normil hid
drugs in various places. On remand the district court should make
specific identification of what evidence exists to support a leadership
role enhancement for Normil.

B.

Henderson contends that the district court's findings that he was a
conspirator and that his relevant conduct encompassed the entire con-
spiracy were clearly erroneous. In determining relevant conduct, the
court must find: 1) the scope of criminal activity which the specific
defendant agreed to undertake; and 2) the conduct in furtherance of,
or reasonably foreseeable in connection with, the defendant's jointly
undertaken criminal activity. U.S.S.G. § 1B1.3(a)(1)(B) & comment;
United States v. Banks, 10 F.3d 1044, 1058 (4th Cir. 1993). Hender-
son argues that the district court failed to make any individualized
determination of his relevant conduct. At sentencing, the probation
officer recited the facts of Henderson's specific conduct, consisting of
two sales. Then the officer recited the information from Gibbs's state-
ments, including delivery of cocaine to Harold Pollack and one
instance of packaging cocaine. In addition, the officer presented an
alleged statement by an unnamed informant. No evidence linked Hen-
derson to the alleged seven additional drug dealers, whose activities
accounted for 73% of the quantity which the court attributed to Hen-
derson. On that basis, the district court found Henderson responsible
for all of the cocaine involved in the conspiracy.

The government argues that the court met the requirement of an
"independent resolution" by expressly adopting the findings contained
in the PSRs. The district court found that the PSRs showed by a pre-
ponderance of the evidence that Normil and Henderson employed at
least eight dealers, who were responsible for a total of 6,420.5 grams
of cocaine, and that because of the appellants' role in the conspiracy,
the entire amount was foreseeable and within the scope of the plea
agreements, thus no offense behavior in the conspiracy fell outside
the relevant conduct of both defendants. The court is allowed to con-
sider all reliable information. United States v. Falesbork, 5 F.3d 715,
720 (4th Cir. 1993).

                    13
Again, the fact that the PSR states that the appellants employed
eight dealers, who were responsible for 6,000 grams, does not mean
that it demonstrated that fact by a preponderance of the evidence. The
PSR contains no more than conclusory statements. The district court
conducted the hearing on these matters in a summary fashion. We,
accordingly, remand for the court's specific determination of what
evidence supports the relevant conduct assigned to each of the appel-
lants.

C.

The court did not determine whether Henderson was eligible for a
two or three-level reduction for acceptance of responsibility, noting
that the reduction would have had no effect on his guideline range,
as he would still be at or above level 40. Since Henderson's base
offense level may be decreased, if he prevails on any issues in this
appeal, on remand, the district court should determine whether Hen-
derson is entitled to a two or three level reduction for acceptance of
responsibility.

V.

For these reasons, we vacate the sentences imposed upon both Nor-
mil and Henderson, and remand these cases to the district court4 for
further proceedings consistent with this opinion.

VACATED AND REMANDED
_________________________________________________________________
4 We reject the defendants' requests that the re-sentencing proceedings
be set before a different district judge.

                    14
