UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 94-5403

HUMPHREY JONES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-93-452-A)

Argued: February 1, 1996

Decided: May 6, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David Benjamin Smith, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. Andrew Gerald McBride, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Rena M. Johnson, Special
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Humphrey Jones was convicted for multiple offenses arising from
the sale of fourteen grams of crack cocaine.1 On appeal he challenges
the sufficiency of the evidence on the conspiracy conviction. He also
challenges his sentence, arguing that the district court erred in adopt-
ing the findings in the presentence report that included seven addi-
tional grams of crack cocaine as "relevant conduct" under section
1B1.3 of the Sentencing Guidelines. For the following reasons, we
affirm Jones's conspiracy conviction, but we vacate his sentence and
remand for resentencing.

I.

Jones was a correctional officer at Lorton Reformatory in Lorton,
Virginia. Anthony Mitchell, also a correctional officer at Lorton,
acted as a confidential informant for an undercover operation target-
ing drug trafficking by correctional officers and staff members. After
meeting at a social engagement, Jones told Mitchell that he could pro-
vide Mitchell with any amount of cocaine. Jones then gave Mitchell
his pager number and told him to contact him when he wanted to
make a purchase.

At trial the Government presented evidence of two taped telephone
conversations between Mitchell and Jones. In the first, Mitchell asked
_________________________________________________________________
1 The jury found Jones guilty of conspiracy to distribute and to possess
with intent to distribute 5 grams or more of crack cocaine in violation of
21 U.S.C. § 846; attempted possession with intent to distribute 5 grams
or more of crack cocaine in violation of 21 U.S.C.§§ 841(a)(1) & 846;
attempted distribution of 5 grams or more of crack cocaine in violation
of 21 U.S.C. §§ 841(a)(1) & 846; and illegal use of a communication
facility (2 counts) in violation of 21 U.S.C. § 843(b).

                    2
Jones how much cocaine he could deliver, and Jones replied, "[t]hat's
never the question. The question is how much do you want?" Jones
agreed to sell Mitchell two quarter ounces (fourteen grams) of crack
cocaine, with delivery to take place at 8:00 p.m. in the Bayvue area
(Northern Virginia) on Monday, November 15, 1993. 2 In the second
recorded conversation, Jones confirmed that he was ready to deliver.
An unrecorded conversation a day later confirmed the deal, according
to Mitchell.

Mitchell planned a second cocaine purchase for that same Monday.
He was to buy cocaine from John Scott at 6:00 p.m., also at Bayvue.
At 5:30 on the appointed day (Monday), Scott called Mitchell to con-
firm the sale. Approximately four minutes after Scott's confirmation
call, Jones called Mitchell and asked to move his purchase up from
8:00 p.m. to 6:00 p.m. Mitchell agreed.

Mitchell testified that he saw Jones next door to the Bayvue Apart-
ments talking to Scott when he arrived to purchase cocaine from
Scott. After Scott sold cocaine to another undercover officer, addi-
tional officers arrived on the scene and attempted to arrest him. Scott
fled but Jones was arrested. Scott was arrested the following day.

Under a grant of immunity, Scott testified as follows. He was a
cocaine dealer who lived at Bayvue, and he had known Jones since
1992, having sold cocaine to him at least twice. On November 15 at
about 5:30 p.m., Scott was in a restaurant (before he was to meet
Mitchell) when Jones came up to him. Shortly thereafter, Scott
showed Jones an incoming number on his pager to see if Jones recog-
nized it, and Jones immediately identified it as Mitchell's number.
Also, in response to an inquiry from Jones, Scott indicated that he was
selling large amounts of crack. Scott further agreed to obtain two
quarter ounces of crack for Jones. And Scott said that Jones told him
that he (Jones) would be meeting Mitchell later on.

James Carlton, who worked with Jones at Lorton, also testified for
the Government. Carlton was arrested November 16, 1993 (the day
after Jones's arrest), for accepting a bribe to allow drugs into Lorton.
_________________________________________________________________
2 The Bayvue area included a shopping center and apartments. The area
was apparently known as a location for drug transactions.

                    3
Jones and Carlton were confined in the same holding cell. Carlton tes-
tified that Jones told him that he and Scott were to deliver a package
in a parking lot and that Scott had "left him just standing there." Carl-
ton also said that Jones had smirked when he discussed his (Jones's)
false alibi, a disabled car.

FBI Special Agent Daniel C. Sparks, who interviewed Jones after
he was arrested, testified that Jones admitted that he was in the park-
ing lot at Bayvue to sell cocaine to Mitchell. Agent Sparks prepared
a written statement to that effect, but Jones refused to sign it. Jones
did, however, write and sign a statement in which he admitted that he
at least intended to contact others "to arrange a situation" for Mitchell
to buy two quarter ounces of crack cocaine. He also wrote that he was
seeking treatment for drug and alcohol problems.

Jones testified, admitting that his voice was on the taped conversa-
tions, that he knew what the expression a "quarter" of crack meant,
that he knew the price of a "quarter", and that Scott was a distributor
of cocaine. Finally, Jones admitted that he called Mitchell after his
meeting with Scott and agreed to meet him in the Bayvue parking lot
at 6:00 p.m.

O'Neal Johnson, Jones's roommate, testified about Jones's ability
to obtain cocaine, stating that on one occasion in early November
1993 Jones, Johnson and an unidentified woman "entertained" them-
selves with crack Jones supplied for them to smoke. When asked how
much crack Jones provided on that occasion, Johnson replied, "I don't
know exactly how much cocaine there was, but it was enough to sat-
isfy the three of us for a couple of hours." On cross-examination,
Johnson admitted that he was spending $400 or $500 every two
weeks to feed his crack habit and that on occasions he took Jones's
crack without his permission.

The jury convicted Jones on all counts, and he received a 97-month
term of imprisonment, the low end of the 97-121 month guideline
range. In rendering sentence, the district court adopted the findings in
the presentence report, which recommended a sentence based on 21
grams of crack cocaine. Purporting to rely on Johnson's testimony,
the presentence report added seven grams of crack cocaine to the
fourteen grams attributable to the busted sale with Mitchell. If, as

                     4
Jones argues, he should not have been sentenced based on the addi-
tional seven grams, then he would have faced a sentencing guideline
range of 78-97 months; indeed, Jones falls into the lower guideline
range if he was responsible for any quantity less than 20 grams in
total.

II.

Jones argues that the evidence was insufficient to support his con-
spiracy conviction because it showed no more than a casual, isolated,
buyer-seller relationship between himself and Scott. That is, it
showed no more than a "one-shot agreement" by Scott to supply
Jones with a quarter ounce of crack cocaine for resale to Mitchell.3 In
support of this argument, Jones relies on a number of cases from other
circuits that have held that evidence of a buyer-seller relationship fails
to establish a conspiracy to distribute drugs. See, e.g., United States
v. Clay, 37 F.3d 338, 341-43 (7th Cir. 1994); United States v. Smith,
34 F.3d 514, 523 (7th Cir. 1994); United States v. Lennick, 18 F.3d
814, 819 (9th Cir.), cert. denied, 115 S. Ct. 162 (1994); United States
v. Price, 13 F.3d 711, 727-28 (3d Cir.), cert. denied, 114 S. Ct. 1863
(1994); United States v. Townsend, 924 F.2d 1385, 1394-95 (7th Cir.
1991).

While we agree with Jones to the extent that evidence of a buyer-
seller relationship (standing alone) may not be sufficient evidence
upon which to base a conspiracy conviction, evidence of a buyer-
_________________________________________________________________
3 This court, of course, reviews sufficiency of the evidence challenges
to determine whether, after viewing the evidence in the light most favor-
able to the Government, any rationale trier of fact could find the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979). To establish a conspiracy to possess with
intent to distribute drugs, the Government must show (1) an agreement
between two or more persons, tacit or express, to possess drugs with
intent to distribute; (2) that the accused willfully joined the conspiracy;
and (3) that the accused joined with intent to accomplish the criminal
purpose of the conspiracy. See United States v. Clark, 928 F.2d 639, 641-
42 (4th Cir. 1991). "Knowledge and participation in the conspiracy may
be proved by circumstantial evidence." United States v. Giunta, 925 F.2d
758, 764 (4th Cir. 1991); see United States v. Meredith, 824 F.2d 1418,
1428 (4th Cir.), cert. denied, 484 U.S. 969 (1987).

                     5
seller relationship is relevant (i.e., probative) on the question of
whether a conspiratorial relationship exists. United States v. Mills,
995 F.2d 480, 485 n.1 (4th Cir.), cert. denied , 114 S. Ct. 283 (1993).
Put another way, evidence of a "one-shot agreement" where a seller
of drugs knows the buyer plans to resell the drugs to another is rele-
vant on the question of whether the seller and the buyer have agreed
to work together to further the distribution to third parties.

In this case, the jury was presented with evidence from which it
could reasonably infer that Scott knew Jones planned to resell the
fourteen grams of crack cocaine to Mitchell.4 There is also additional
evidence here. Both Scott and Jones were together in the Bayvue
parking lot at the time Mitchell was to purchase the drugs. Indeed,
Jones even admitted (in a written statement given to Agent Sparks)
that he "would have contacted a few people to arrange a situation" for
Mitchell to buy crack cocaine. When the police arrived, Scott fled and
Jones was apprehended. According to Carlton, Jones said that he and
Scott were to deliver a package in a parking lot and that Scott had
"left him just standing there." From that evidence a jury could reason-
ably infer that Jones and Scott knowingly joined together to sell drugs
to Mitchell. That, by definition, is a drug conspiracy. We therefore
affirm Jones's conspiracy conviction.5
_________________________________________________________________
4 When there is a large quantity of drugs being sold, evidence of a
"one-shot agreement" standing alone may be sufficient evidence to sup-
port a conspiracy conviction. See id. In this case, although the Govern-
ment presented evidence that fourteen grams of crack cocaine is a
distributable quantity, we are not required to decide whether that amount
is large enough by itself that a jury could reasonably infer all the ele-
ments of a conspiracy based just upon Scott agreeing to sell this amount
to Jones.
5 On January 26, 1996, a few days before argument, we denied Jones's
motion to file a pro se supplemental brief. By that time, however, the
government had responded in its brief to Jones's pro se argument that the
evidence was insufficient to sustain his conviction for attempted posses-
sion with intent to distribute crack cocaine (Count 2) and for attempted
distribution of crack cocaine (Count 3). Jones's counsel then argued the
issue in the reply brief. Because counsel for both sides addressed the
issue in the formal briefing, we have therefore considered it. We con-
clude that the evidence, which we discuss fully in Part I of this opinion,
is sufficient to sustain Jones's conviction on Counts 2 and 3 of the super-
seding indictment.

                    6
III.

As we have noted, Jones's sentence was not based exclusively
upon the attempted sale of fourteen grams of crack cocaine to Mitch-
ell. The Government also argued, and the district court accepted, that
an additional seven grams of crack cocaine should be included as "rel-
evant conduct" under section 1B1.3 of the Sentencing Guidelines.

We, of course, review a district court's factual findings as to the
quantity of drugs attributable to a defendant for clear error. 18 U.S.C.
§ 3742(e); United States v. McDonald, 61 F.3d 248, 255 (4th Cir.
1995); United States v. Brooks, 957 F.2d 1138, 1148 (4th Cir.), cert.
denied, 505 U.S. 1228 (1992). At sentencing the Government must
prove the amount of drugs attributable to a defendant by a preponder-
ance of the evidence. See, e.g., McDonald, 61 F.3d at 255; United
States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). A defendant
may not, however, be sentenced in violation of the Constitution,
which includes the right to due process of law. See United States v.
Inglesi, 988 F.2d 500, 502 (4th Cir. 1993); United States v.
Headspeth, 852 F.2d 753, 755 (4th Cir. 1988).

Here, the district court included the additional seven grams based
on the presentence report. The presentence report said that "trial testi-
mony from O'Neal Johnson, Mr. Jones' roommate and Lorton
employee, revealed that Jones sold Johnson $400 worth of crack
cocaine between November 1, 1993 and November 13, 1993." The
presentence report further noted that testimony at trial showed that the
price of a quarter ounce (seven grams) of crack cocaine at that time
in Northern Virginia was $300. "Therefore," according to the presen-
tence report, "Humphrey Jones distributed at least an additional 7
grams of crack cocaine to O'Neal Johnson. This brings the total
amount of crack cocaine distributed by Humphrey Jones between
November 1, 1993 and November 15, 1993 to 21 grams."

Jones argues (and the Government tacitly concedes) that the pre-
sentence report is wrong on two facts. First, Johnson never testified
at trial that Jones sold him $400 worth of crack cocaine between
November 1, 1993 and November 13, 1993. Second, while Johnson
did testify that he, Jones, and an unidentified woman "entertained"
themselves "for a couple of hours" with crack cocaine on an occasion

                     7
in early November 1993, Jones did not in fact distribute all of the
cocaine to Johnson. Thus, if there were in fact seven grams of
cocaine, Johnson was not the recipient of all seven grams.

On appeal the Government states that the factual errors in the pre-
sentence report were a result of the report's reliance on an FBI form
FD-302 report. In particular, instead of relying upon Johnson's trial
testimony as it purported to do, the presentence report relied upon
interview notes memorialized in an FD-302 report written by Agent
Sparks to reach the conclusion that Jones sold Johnson $400 worth of
crack cocaine. Agent Sparks had interviewed Johnson after Jones's
arrest, and during the interview Johnson had estimated that the crack
cocaine that Jones supplied for himself, Johnson, and the unidentified
woman would have cost approximately $400. The FD-302 report was
not a part of the record, and neither Jones, nor his counsel, nor the
district court were ever given access to the FD-302 report or made
aware of its existence.

Because of the errors in the presentence report, Jones argues that
the Government did not carry its burden of proving that he distributed
seven grams of crack cocaine to Johnson. In response, the Govern-
ment claims that Jones waived the right to contest the amount of
drugs attributable to him because "Jones did not make a specific
objection to the valuation of the crack cocaine distributed to John-
son." Govt. Br. at 30-31. On the merits the Government claims that
the presentence report "simply mischaracterized" Johnson's trial testi-
mony and therefore Jones was properly sentenced. Id. at 31.

We agree with Jones that he did not waive the right to appeal the
quantity of drugs attributable to him. We also believe that it was clear
error for Jones to be sentenced based on allegations which were
untrue and which he never had a fair opportunity to contest. However,
on remand, we believe that the Government should again be allowed
to establish that Jones distributed the additional seven grams to John-
son, provided that the Government relies exclusively upon evidence
that was properly in the record at the time of Jones's first sentencing.

As for waiver, at the sentencing hearing Jones's counsel specifi-
cally objected to the presentence report's inclusion of the additional
seven grams:

                    8
          Relative to the additional 7 grams, Your Honor, that the
          government seeks to have you consider, that will be the
          O'Neal Johnson transaction. It's our position, Your Honor,
          that that particular quantity, whatever that quantity was, is
          unknown, that that was for his personal use. And as the
          defendant testified at the trial, at this party he put it up on
          the counter. He didn't give it to either O'Neal Johnson or
          the others. They took it. He never got any money for it. It
          was for his own personal use.

          But as far as the quantity, it's too speculative as to how
          much --

The district court then injected a comment, and the prosecutor
responded to defense counsel's argument, claiming that Johnson esti-
mated the value of the crack cocaine provided by Jones at the party
to be $400. Clearly, therefore, Jones's counsel called the district
court's attention to the fact that the presentence report's estimate of
the amount of drugs attributable to Jones was speculative and not sup-
ported by the record. See United States v. Terry , 916 F.2d 157, 162
(4th Cir. 1990) (a defendant that contests the findings in a presentence
report "has an affirmative duty to make a showing that the informa-
tion in the presentence report is unreliable, and articulate the reasons
why the facts contained therein are untrue or inaccurate").

On the merits, we hold that the presentence report's reliance upon
mischaracterized information from the FD-302 report, which Jones's
counsel did not know about and had no opportunity to contest,
requires that Jones's sentence be vacated and the case remanded for
resentencing. See Inglesi, 988 F.2d at 502 (due process may be vio-
lated in sentencing by use of inaccurate information and due process
may also be violated when sentencing is based on information the
defendant has not had a fair opportunity challenge); Headspeth, 852
F.2d at 755 (a convicted defendant retains a due process right not to
be sentenced based on materially false or inaccurate information).

Our decision to vacate and remand is not, however, predicated on
the fact that the additional seven grams--if that quantity is established
by the record at resentencing--falls outside of"relevant conduct"
under section 1B1.3. At resentencing the district court might decide

                     9
that Johnson's testimony at trial was sufficient to establish the addi-
tional seven grams. The district court, however, might also reach the

opposite conclusion. But in any event, the district court should have
the opportunity to sentence Jones without having to rely upon a con-

cededly inaccurate presentence report.

Accordingly, if at resentencing the Government is able to establish

by a preponderance of the evidence that Jones distributed the addi-
tional seven grams to Johnson, then Jones's sentence may be based

on twenty-one grams. The Government may not, however, go outside
of the existing record to establish the distribution of the additional

seven grams, and, in particular, the Government may not rely upon
the FBI FD-302 report. See United States v. Parker, 30 F.3d 542, 553-

54 (4th Cir.) (at resentencing government may not go outside of the
existing record and introduce new evidence to support imposition of

enhanced sentence), cert. denied, 115 S. Ct. 605 (1994).6

IV.

Jones's conviction is affirmed, but his sentence is vacated and the
case is remanded for resentencing in a manner consistent with this
opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED
_________________________________________________________________

6 Our mandate on resentencing is thus limited to whether the Govern-
ment can establish that there is in fact an additional seven grams (or
some lesser amount) attributable to Jones as "relevant conduct" under
section 1B1.3 of the Sentencing Guidelines. Whether Jones is resen-
tenced based on 14 grams, 21 grams, or some number in between, the
actual sentence imposed is "constrained only by the constitutional bar
against vindictiveness, North Carolina v. Pearce, 395 U.S. 711 (1969),
the controlling statutes, and the Sentencing Guidelines." United States v.
Broughton-Jones, 71 F.3d 1143, 1149 n.4 (4th Cir. 1995); see United
States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).

                    10
