                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4639


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

STEVEN LARUE ROBINSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:11-cr-00131-FL-1)


Argued:   October 29, 2013              Decided:   February 21, 2014


Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.


Affirmed by published opinion.    Judge Motz wrote the opinion, in
which Judge Niemeyer joined.        Judge Diaz wrote a separate
opinion dissenting in part.


ARGUED: Seth Allen Neyhart, STARK LAW GROUP, PLLC, Chapel Hill,
North Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

        Steven      Robinson        challenges    his     140-month     sentence         for

cocaine distribution, contending that the district court erred

in assigning his drug quantity and in calculating his criminal

history.         For the reasons that follow, we affirm.



                                             I.

                                             A.

        In       2010,    police     officers     in    Wilson,    North      Carolina,

videotaped         Robinson    and     two   others     making    six    crack-cocaine

sales to a police informant.                  The Government indicted Robinson

on one count of conspiring to distribute crack cocaine from 2002

to 2011, one count of aiding and abetting the distribution of

crack cocaine, and six counts of distribution of crack cocaine.

Robinson pled guilty to three of these counts in February 2012,

but sought to proceed to trial on the remaining five counts.

His two co-conspirators pled guilty the week before Robinson’s

scheduled         trial.      In    light    of   these   guilty     pleas,    Robinson

himself pled guilty to the remaining five counts on April 30,

2012, the day on which his trial had been scheduled.

                                             B.

        A    presentence       investigation       report    (PSR)      drafted     by    a

probation officer calculated Robinson’s base offense level in

light       of    the    quantity    of   crack   cocaine   attributable       to    him.

                                              2
Although the counts to which Robinson pled guilty specify only

that the crime involved “50 grams or more” of crack cocaine, the

Sentencing Guidelines require judges to consider all drug sales

made by the defendant during the conspiracy -- including drug

sales not covered by the counts of conviction.          U.S.S.G. § 2D1.1

cmt.5.

        In Robinson’s case, the probation officer concluded that,

between 2002 and 2011, Robinson sold far more crack cocaine than

was implicated by the six sales the police captured on tape.             In

arriving at this conclusion, the probation officer relied on

statements made to the police by Melvin Battle, who claimed to

have purchased drugs from Robinson regularly from 2000 through

2008.     Taking the low end of Battle’s estimates, the probation

officer estimated that Robinson sold Battle 1.43 kilograms of

crack cocaine.        This estimate, combined with the drug quantity

covered    by   the   counts   of   conviction,   translated   to   a   drug

quantity calculation of 1.47 kilograms of crack cocaine, which

produced a base offense level of 34.              From this base offense

level, the probation officer recommended a 3-level reduction for

acceptance of responsibility, resulting in a recommended offense

level of 31.

     The PSR also contained a calculation of Robinson’s criminal

history category.       The probation officer assigned Robinson one

criminal history point based on a 2003 conviction for marijuana

                                      3
possession, and another point based on a 2009 conviction for

resisting arrest and carrying a concealed weapon.                         The probation

officer added      two    more        points       under   Section     4A1.1(d)   of    the

Sentencing Guidelines, which provides for an enhancement if the

defendant committed the crime of conviction while on probation.

The probation officer reasoned that Robinson had been given a

one-day   sentence       of    probation        because     of   his    2003   marijuana

conviction, and that this term coincided with the ongoing drug

conspiracy.      These         four      criminal      history    points    produced     a

criminal history category of III.

     Based on a criminal history category of III and an offense

level of 31, the recommended Guidelines range in the PSR totaled

135-168 months imprisonment.

                                              C.

     At sentencing, Robinson objected both to the calculation of

drug quantity and the calculation of criminal history.

                                              i.

     Robinson’s challenge to his drug quantity rested on the

PSR’s   reliance    on        the    statement        provided    by    Melvin    Battle.

Given the opportunity to address the court directly, Robinson

pointed out that, before attributing 1.43 kilograms of crack to

Robinson,     Battle     had        in   an    earlier      interview      stated      that

Robinson sold him 6 kilograms of the drug.                       Robinson also argued

that Battle’s claim to have bought PCP cigarettes from Robinson

                                               4
in North Carolina from 2005 to 2008 was false because Robinson

was enrolled in culinary school in Florida during most of that

period.      Contending that he never sold drugs to Battle, Robinson

insisted that Battle was “blatantly lying” to curry favor with

prosecutors.

       In response, the Government conceded that Battle revised

his    statement        to    render     his       second    drug-quantity        estimate

significantly lower than his first.                     But the Government argued

that “it is not unusual for Defendants to estimate differently”

when interviewed on two separate occasions.                           According to the

Government,        Battle’s     second    statement         merely    provided        a    more

conservative and reliable estimate than the first.                           With respect

to    the    PCP    cigarettes        Battle       claimed    to     have    bought        when

Robinson was in Florida, the Government emphasized that these

sales did not figure into the PSR drug-quantity assignment.

       The     Government            further       defended         the     drug-quantity

calculation        by   explaining       that,      notwithstanding         the   asserted

deficiencies in Battle’s statement, three other witnesses were

prepared     to    state      that    Robinson       sold    them    drugs    during        the

conspiracy timeframe.            Although these statements did not “make

their way” to the probation office, the Government maintained

that these accounts would put Robinson “in at least the position

he’s    in    with      Mr.    Battle’s        statement,     if     not     in   a       worse

position.”

                                               5
       Upon consideration of the parties’ arguments, the district

court presented Robinson with a choice:

       We’ll do it one of two ways.       We’re going to go
       forward today with what’s here and now, and I’ll make
       the decisions that I need to make by a preponderance
       of the evidence.     Or I’ll unwind the whole thing.
       I’ll start the PSR process all over.     If there are
       statements that didn’t, for whatever reason, make it
       to the Probation Office, [I’ll] start again.     And,
       whatever happens, happens.    And then, you’ll have a
       chance to object. . . . That’s the only way I see --
       those are the only two choices.

Robinson responded by reiterating that Battle’s statement was

not credible.         But, after the court again asked him whether he

would prefer to proceed on the basis of Battle’s statement or

delay sentencing for three months to allow the parties ample

time   to    obtain    more    information,       Robinson        responded      that    “I

would rather go ahead and do it now, Your Honor.”

       The   Government       further     explained        the    basis    of   the   drug

quantity     calculation       set      forth    in    the       PSR     and    why   this

calculation     would       have   been      higher   if    the    PSR    had    included

statements     of   other     witnesses.         Robinson        then     addressed      the

court, contending that he “wasn’t an everyday drug dealer” and

that any witnesses saying to the contrary were lying.                           After the

court reviewed        the    counts     to    which   Robinson         pled    guilty,    it

concluded that, with respect to the relevant conduct informing

his drug quantity calculation, Robinson “really ha[d] gotten a

break [because of] the way the Probation Office calculated the


                                             6
amount of crack cocaine.”           The court stated that it “had heard

enough   to    conclude    that    the    calculations        in    the    [PSR   were]

credible      and    reliable,”    and        that    they    could       be   used    in

calculating Robinson’s offense level, but it again reiterated

that it was willing to “open this all back up” if Robinson were

so inclined.        Robinson did not take the court up on its offer.

                                         ii.

     Robinson       also   objected      to    the    PSR’s    assignment       of    two

criminal history points on the basis of his sentence of one day

probation for the 2003 marijuana conviction.                       He argued that he

had spent the entire day of probation en route from the Maryland

courthouse, and so could not have sold drugs on that day.                             The

court rejected this argument and imposed a two-point adjustment,

concluding that the Sentencing Guidelines required this result.

This adjustment increased Robinson’s guidelines range from 121-

151 months to 135-168 months.                 The court sentenced Robinson to

140 months imprisonment -- a sentence the court noted was “well

within” both ranges.

     Robinson        appeals,     asserting          that    the     district     court

procedurally erred in calculating his drug quantity and criminal

history. 1


     1
       Robinson’s alternative argument that his military service,
mental health issues, and work history render his within-
Guidelines sentence substantively unreasonable is meritless.


                                          7
                                               II.

           With respect to drug quantity, Robinson contends that the

district          court    committed     plain      error    by      relying      on    Battle’s

statement          in     the   PSR.     Robinson,       however,          has    waived       this

contention.             When he made the conscious choice at sentencing to

proceed on the basis of the information contained in the PSR,

including          Battle’s      statement,         Robinson        waived    his      right    to

appeal the district court’s reliance on that information.

       A “waiver is the intentional relinquishment or abandonment

of a known right.”                 Wood v. Milyard, 132 S. Ct. 1826, 1835

(2012) (quotation marks omitted).                     Waiver is to be distinguished

from   “forfeiture,”            which    is    “the    failure       to    make     the      timely

assertion of a right.”                  Kontrick v. Ryan, 540 U.S. 443, 458,

n.13 (2004).               Courts may review a forfeited claim for plain

error.       United States v. Olano, 507 U.S. 725, 731 (1993). 2                               But

when a claim is waived, it is not reviewable on appeal, even for

plain error.             Id.    Rather, a valid waiver means that there was

“no error at all.”               United States v. Keeter, 130 F.3d 297, 300

(7th       Cir.    1997).        The    case   at     hand     is    one     of   waiver,      not

forfeiture.               “A    party   who    identifies           an     issue,      and    then


       2
       Under plain error review, the challenging party must show
that (1) there was an “error” (2) the error was “plain”, (3) the
error “affect[s] substantial rights,” and (4) the error
“seriously   affect[s]   the   fairness,  integrity  or   public
reputation of judicial proceedings.” Olano, 507 U.S. at 732).


                                                8
explicitly withdraws it, has waived the issue.”                                      United States

v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).

       Here,    Robinson          raised    an     objection         to    his       drug-quantity

calculation by challenging the credibility and reliability of

the testimony on which the PSR relied.                          The Government countered

this objection by stating that other witnesses were available to

corroborate       (or   augment)          the     drug-quantity           calculation.                The

district       court    could       have        unilaterally          chosen          to     grant     a

continuance.        See United States v. Johnson, 732 F.2d 379, 381

(4th Cir. 1984).             But, perhaps because doing so might have led

to   Robinson      receiving          a    higher       sentence,         the    court           instead

provided Robinson with a choice:                       (1) postponement of sentencing

to allow the parties to produce new evidence as to the proper

drug   quantity,        or    (2) proceeding            to   sentencing           based          on   the

evidence before the court.

       When    presented          with     this       choice,     Robinson           unequivocally

stated     that    he        “would       rather       go    ahead        and        do     it     now.”

Furthermore, he adhered to this position when the district court

gave him an opportunity to change his mind.                                      Thus, Robinson

consciously       abandoned          his     objection          to    the        drug        quantity

calculation       in    the        PSR     and        instead     opted         to        proceed     to

sentencing      based        on   the     information        in      the    PSR.            This      was

waiver.



                                                  9
       Whether the waiver was valid is a matter of law that we

review de novo.           United States v. Marin, 961 F.2d 493, 496 (4th

Cir.    1992).           Criminal         defendants          may        waive        statutory      or

constitutional          rights      --    including          the    right        to    challenge      a

particular ruling on appeal -- if the waiver is knowing and

voluntary.              Id.         Examination          of        the     totality           of    the

circumstances           determines         whether       a     waiver       is        knowing       and

voluntary.          United States v. Farrell, 393 F.3d 498, 500 (4th

Cir. 2005).

       In    this       case,      the    record        reveals      that        the        defendant,

Robinson, knew exactly what he was relinquishing.                                      The district

court explicitly and repeatedly explained that, by choosing to

proceed with sentencing, Robinson was agreeing that his drug

quantity would be calculated on the basis of the PSR, which

relied on Battle’s statement.                     On three separate occasions, the

court       presented         Robinson       with        the       choice        of         postponing

sentencing         to     supplement         the        record       or     proceeding              with

sentencing      based         on   the     information         in     the       PSR.         Robinson

consistently         adhered         to     his     preference             to     proceed           with

sentencing without supplementing the record.

       Nothing in the record suggests that Robinson -- who had

graduated      from      high      school,    attended             community          college,      and

attained      an    associate        degree        in    culinary          arts        --     did   not

understand this choice.                   Indeed Robinson does not even contend

                                              10
that he did not understand this choice.                   Thus, his waiver was

knowing and voluntary. 3

      Robinson’s decision to proceed on the basis of the existing

PSR is akin to a defendant’s decision to proceed with a bench

trial     rather    than     a   jury     trial     --     quintessentially     an

enforceable waiver.        See United States v. Boynes, 515 F.3d 284,

287   (4th   Cir.   2008).       Having      made   a    choice   at   sentencing,

Robinson cannot now contend that the district court erred by

honoring that choice.        He has waived the argument. 4


      3
       The dissent asserts that “the district court did not make
a finding on the reliability of Battle’s statements until after
it presented Robinson with his choice,” and that Robinson
“rel[ied] on the court’s representation that it would apply the
evidentiary standard” when he chose to proceed.      The dissent
thus concludes that Robinson waived at most “the opportunity for
a 90-day delay.”     This argument, which Robinson himself has
never made, fails.    First, it fails to consider the record in
its entirety. In the very same four-sentence paragraph in which
the court made its reliability finding, it again reiterated its
willingness to “open this all back up.”         Given Robinson’s
extensive argument on his own behalf (including his not
infrequent interruptions of the district court), he surely would
not have hesitated to withdraw his waiver if he wished to, but
he did not.     Moreover, the dissent’s proposed holding would
permit Robinson to impeach (by unsworn argument) Battle’s
statement, while at the same time preventing admission of new
evidence to supplement the record. In short, the dissent would
permit Robinson to have his cake and eat it too. Moreover, the
dissent’s approach would counsel sentencing courts to act
unilaterally without offering defendants a choice, and would
thus undermine the very interests the dissent aims to protect.
      4
       The Government’s contention that Robinson “invited” error
by the district court thus misses the mark.     Robinson did not
“ask[]” the court to rely on Battle’s statement and then
complain on appeal that this reliance was improper. See United
(Continued)
                                        11
      We note that this conclusion accords with the holdings of

the   Supreme    Court     and     our        sister   circuits    in    similar

circumstances.     See Wood, 132 S. Ct. at 1835 (holding that the

State waived a defense where, “after expressing its clear and

accurate understanding” of the defense, the State “deliberately

steered   the   district   court    away”       from   it);   United   States   v.

Guzman, 707 F.3d 938, 941, n.2 (8th Cir. 2013) (holding that

defendant waived claim that Government breached plea agreement

at sentencing by withdrawing pro se motion to withdraw guilty

plea prior to sentencing); Rodriguez, 311 F.3d at 437 (holding

that defendant “consciously waived” his objection to information

in the PSR by raising, and then withdrawing, the objection prior

to sentencing); Keeter, 130 F.3d at 300 (holding that defendant

waived an objection by rejecting the court’s offer to postpone a

sentencing hearing and opting instead to proceed without delay). 5




States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994).       Rather,
after initially objecting to the use of Battle’s statement,
Robinson expressly waived any objection to it.      Accordingly,
rather than committing “invited error,” the district court
committed “no error at all.” Keeter, 130 F.3d at 300.
      5
       Although not determinative here, given Robinson’s waiver,
we note that he mistakenly asserts that United States v.
Solomon, 274 F.3d 825 (4th Cir. 2001) establishes that when a
defendant disputes the drug quantity calculations in the PSR,
the PSR provides “no evidentiary basis” for that calculation.
Appellant’s Br. at 13.     Solomon does not so hold.     Solomon
merely holds that a probation officer’s calculation in a PSR
“standing alone” (that is, without the identification of
(Continued)
                                         12
                                               III.

        Robinson also asserts that the district court committed two

errors in calculating his criminal history.

                                                A.

       He first contends that the court erred in treating his 2003

marijuana conviction as yielding a “prior sentence” rather than

as    “relevant      conduct”       with       respect      to   his    current    sentence.

Whether     a    crime        constitutes         “relevant        conduct”       under     the

Guidelines      is   a   factual         question      we    review     for    clear   error.

United States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004).                                   If

the    district      court’s       finding       “is   plausible        in     light   of   the

record viewed in its entirety,” we will not reverse it simply

because “we would have decided the fact differently.”                                  United

States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (citation

and quotation marks omitted).

       In calculating a defendant’s offense level, a sentencing

court    must     consider         all    “relevant         conduct”      surrounding       the

offense.        U.S.S.G. § 1B1.3.               Relevant conduct encompasses acts

“that     occurred       during          the    commission         of    the     offense     of

conviction       [or]    in    preparation           for    that    offense,”      including

conduct    resulting          in    a    separate      criminal         conviction.         Id.




supporting evidence of any kind) “does not constitute a finding
of fact” on which a sentencing court can rely. Id. at 828, n.3.


                                                13
§ 1B1.3(a)(1).             The Guidelines include as relevant conduct “all

quantities         of      contraband”        the      defendant     sold     during         a

conspiracy.           Id. § 1B1.3(a)(1) cmt.2(b).

       In addition to establishing the defendant’s offense level

in   light       of     all    relevant      conduct,    a     sentencing    court        must

separately        calculate         the    defendant’s        criminal    history        score

based in part on his “prior sentence[s].”                           Id. § 4A1.1.           The

Guidelines exclude from the definition of “prior sentences” any

sentence        resulting          from    conduct     that    constitutes      “relevant

conduct” to the current offense.                     Id. § 4A1.2 cmt.1.            Thus, if

an     offense        qualifies      as    relevant     conduct     for    offense-level

purposes, it cannot also yield a prior sentence for criminal-

history purposes.

       Robinson pled guilty to conspiring to sell cocaine from

2002       to   2011.         He   had    previously    been    found     guilty    of     and

sentenced for marijuana possession in 2003.                          He contends that

the 2003 marijuana conviction and sentence constituted “relevant

conduct” to his drug conspiracy rather than yielding a “prior

sentence.”            He      therefore     objects     to    the   inclusion       of    the

marijuana sentence in his criminal history score. 6


       6
       Although he did not make this precise argument before the
district court, Robinson did challenge his criminal history
score, and thus preserved his claim.       See Yee v. City of
Escondido, 503 U.S. 519, 534 (1992) (“Once a federal claim is
properly presented, a party can make any argument in support of
(Continued)
                                               14
       The    district      court        did    not     clearly       err     by    treating

Robinson’s 2003 marijuana sentence as a prior sentence rather

than    relevant      conduct.          The    2003    sentence      was    for    marijuana

possession,         while   the    ongoing       conspiracy         involved       the   crack

cocaine      distribution         --      suggesting          two     distinct       crimes.

Moreover, the 2003 sentence was for simple possession rather

than    distribution        --    suggesting          that    the    marijuana      was    for

personal use and played no role in a drug-dealing conspiracy.

The fact that an unrelated drug conviction and sentence occur

during the timeframe of a drug conspiracy does not automatically

convert      them    into   relevant          conduct    of    the    conspiracy.          See

U.S.S.G § 4A1.2 cmt.1 (“A sentence imposed after the defendant’s

commencement of the instant offense, but prior to sentencing on

the instant offense, is a prior sentence if it was for conduct

other    than    conduct     that       was     part    of    the    instant       offense.”

(emphasis       added)).          The    district        court’s      finding       is    thus

“plausible in light of the record viewed in its entirety” and is

entitled to our deference.               Stevenson, 396 F.3d at 542.

                                               B.

       Robinson also contends that the district court erred by

adding    two    points     to    his     criminal       history      score    because      he




that claim; parties are not limited to the precise arguments
they made below.”).


                                               15
participated       in    the   drug    conspiracy    while       on    probation.       We

review   de    novo      a   trial    court’s   legal     interpretation         of    the

Guidelines.        United States v. Wessells, 936 F.2d 165, 168 (4th

Cir. 1991).

      The     Sentencing        Guidelines      require      a       two-point    upward

adjustment “if the defendant committed the instant offense while

under any criminal justice sentence, including probation [or]

parole.”       U.S.S.G.        § 4A1.1(d).      An   application         note    to   this

provision clarifies that a two-point adjustment is warranted if

the defendant committed “any part of the instant offense” while

on probation.           Id. § 4A1.1 cmt.4.         Under the plain language of

this provision, an enhancement must be imposed if any part of

the defendant’s crime coincides with a term of probation.                              See

United States v. Hernandez, 541 F.3d 422, 424 (1st Cir. 2008)

(affirming     a    two-point         adjustment     where       the    defendant      was

sentenced      to       probation      midway      through       a     heroin-delivery

conspiracy even though he never actually delivered heroin during

the probation term).             If a sentencing court concludes that a

two-point adjustment is too harsh given the minor nature of the

offense giving rise to probation, the proper course is to apply

the   enhancement        and   then    depart   downward.            United   States    v.

Kimberlin, 18 F.3d 1156, 1160-61 (4th Cir. 1994).

      Robinson argues that he was in transit on the day of his

probation in 2003 and that he could not have sold crack cocaine

                                           16
on that day.     But even assuming Robinson did not sell cocaine

during his 24 hours of probation, the two-point adjustment was

proper.    Given the plain language of the Guidelines, even a

short period of probation imposed during an ongoing conspiracy

triggers an enhancement under § 4A1.1(d).          Robinson’s “instant

offense” was a drug-dealing conspiracy that spanned from 2002 to

2011.      Because   this   timeframe   included   Robinson’s    day   of

probation in 2003, the enhancement was proper.        We note further

that the district court, conscious of the minor nature of the

marijuana offense, imposed a sentence that was “well within”

both the Guidelines range including and the Guidelines range

excluding this two-point adjustment.



                                  IV.

     For the foregoing reasons, the judgment of the district

court is

                                                                AFFIRMED.




                                   17
DIAZ, Circuit Judge, dissenting in part:

       I agree with my colleagues that Robinson freely chose to

proceed with his sentencing hearing.                 But because we part ways

as    to   what,    precisely,      that   choice    entailed,    I   respectfully

dissent from Part II of the majority opinion.



                                           I.

       The majority apparently believes that Robinson’s “waiver”

encompassed        his   right     to   challenge    the     sufficiency    of   the

evidence       supporting    the    drug    weight     for   which    he   was   held

accountable.       I cannot agree with this overly broad reading.

       Before the district court, Robinson objected vigorously to

the    PSR’s    drug     weight    calculation,      focusing    particularly     on

Battle’s credibility.             See J.A. 119, 121, 123–126, 132, 135–36,

141–43, 152.        After the court expressed concern about Battle’s

statements,        the    government       explained     that    it    could     call

additional witnesses who would prove an even higher drug weight.

But neither Battle nor those additional witnesses were available

to testify that day.               The court presented Robinson with two

options 1:

       We’ll do it one of two ways.       We’re going to go
       forward today with what’s here and now, and I’ll make

       1
       At this point, Robinson was speaking for himself, rather
than through counsel.   The district court continued to address
Robinson directly for the remainder of the hearing.


                                           18
       the decisions that I need to make by a preponderance
       of the evidence.     Or I’ll unwind the whole thing.
       I’ll start the PSR process all over.      If there are
       statements that didn’t for whatever reason, make it to
       the Probation Office, start again.       And, whatever
       happens, happens.   And then, you’ll have a chance to
       object.   And then I’ll, you know, in three months
       time, see you.    And we’ll see what the Pre-Sentence
       Report looks like, and I’ll make the decisions that I
       need to make. That’s the only way that I see -- those
       are the only two choices.

       J.A. 131–32 (emphasis added).      After Robinson intimated his

concern   for    the   court’s   resources,   the    choice    was   presented

again: “I’ll consider all of the information that either side

wishes to present to me now, or we’ll start all over and I’ll

take the case up in 90 days.”       J.A. 133.

       It is true that Robinson chose to “go ahead and do it now.”

J.A.    133.     My    colleagues   say   that      “[t]he    district   court

explicitly and repeatedly explained that, by choosing to proceed

with sentencing, Robinson was agreeing that his drug quantity

would be calculated on the basis of the PSR, which relied on

Battle’s statement.”       Maj. Op. at 10.       But this is only part of

the story.      The district court also “explicitly . . . explained”

that the court would consider the evidence before it and apply

the appropriate evidentiary burden.           Indeed, the district court

did not make a finding on the reliability of Battle’s statements

until after it presented Robinson with his choice.               Compare J.A.

131–32, with J.A. 143–44.



                                     19
       To   be      quite     clear:    the    district       court    gave       Robinson    a

choice of proceeding with the appropriate evidentiary standard

or starting the process over.                      Robinson continued to object to

Battle’s credibility and noted that he did not “want to keep

causing The Court [sic] more time and money.”                            J.A. 133.          The

district court reiterated the two options.                       And Robinson elected

to “go ahead and do it now.”                 J.A. 133.

       Later, after the court had proceeded with the sentencing

hearing       and     heard     further       argument     about      the     drug       weight

calculation, the district court seemed satisfied that it had

heard enough.          In the midst of a fairly lengthy discourse, the

court stated, “[I]f you’re inclined to want to open this all

back up, I will open it all back up.                      But I think I have heard

enough to know that the calculations in the [PSR] are credible

and reliable, and that I may rely on those in determining the

advice of the Guidelines.”                  J.A. 143–44.       The court then went on

for two more paragraphs, assigning Robinson’s base offense level

and moving on to mitigating circumstances.

        The      majority      opines       that    “[w]hen    presented          with    [his]

choice, Robinson unequivocally stated” his desire to proceed.

Maj.   Op.       at   9–10.       As    I     understand      it,     this    “unequivocal

statement,” rather than Robinson’s later silence in response to

a   non-question,        is    what     the    majority       believes       to   constitute

waiver.       Indeed, the majority explicitly notes that when the

                                               20
district court made its finding on reliability, Robinson “would

not have hesitated to withdraw his waiver if he wished to.”

Maj. Op. at 11 n.3.      Thus, the “waiver” the majority touts did

in fact precede any findings on credibility.            It is difficult to

understand how the scope of that affirmative “waiver”--a waiver

relying on the court’s representation that it would apply the

evidentiary standard--would change simply because Robinson did

not   immediately   object    to   a   finding   made   much   later   in   the

hearing.    On this record, I cannot agree that Robinson waived

his right to contest the sufficiency of the district court's

finding as to drug weight--a finding that had yet to occur when

he chose to proceed. 2       If he waived anything at all, it was the

opportunity for a 90-day delay.



      2
       The cases on which the majority relies are inapposite. In
United States v. Keeter, for example, the defendant explicitly
chose to proceed with sentencing with his current attorney; he
argued on appeal that he should not have been represented by an
unprepared lawyer.    See 130 F.3d 297, 300 (7th Cir. 1997).
Thus, unlike the court today, the Seventh Circuit held Keeter to
a choice he actually made.       The other cases cited by the
majority similarly fail to apply here, as Robinson forcefully
contested Battle’s credibility. Cf. Wood v. Milyard, 132 S. Ct.
1826, 1835 (2012) (finding waiver where the state “deliberately
steered” the court away from the pertinent question); United
States v. Guzman, 707 F.3d 938, 941 n.2 (8th Cir. 2013) (finding
waiver where defendant withdrew his motion and also signed a
consent form admitting his acceptance of the purpose and effect
of that withdrawal); United States v. Rodriguez, 311 F.3d 435,
437 (1st Cir. 2002) (“[H]e then deliberately withdrew his
objection.”).



                                       21
                                           II.

       Because       Robinson     did     not       waive    his        objection      to   the

sufficiency of the evidence, the district court remained duty-

bound    to    apply    the    appropriate          standard.           “[T]he    government

bears the burden of proving by a preponderance of the evidence

that quantity of drugs for which a defendant should be held

accountable at sentencing . . . .”                    United States v. Milam, 443

F.3d    382,     386    (4th     Cir.    2006).         The       paltry     evidence       the

government offered cannot suffice.

       Battle’s “evidence” is a sorry mess.                        In a 2010 statement,

Battle accused Robinson of providing six kilograms of cocaine

base; in 2012, less than two kilograms.                           See J.A. 124–25, 176.

The     government           conceded      that        the        statements        differed

“significantly,” J.A. 139, yet somehow contends that they are

“not inconsistent,” J.A. 128.                   Of greater concern is Battle’s

statement      that     he     regularly        purchased         PCP     cigarettes        from

Robinson in North Carolina between 2005 and 2008.                                This defies

common sense: as the PSR explains, Robinson lived in Florida for

much of that time.              J.A. 181–82.           The district court excused

this    discrepancy,         noting     that    those       PCP    cigarettes       were    not

included in the drug weight calculation.

       But such a rationale sidesteps the real issue: by lying

about the PCP cigarettes, Battle has shown himself unworthy of

belief.        And     because    the    government         declined       to    put    either

                                               22
Battle     or    the    probation      officer           who    interviewed      him   on   the

stand, the court had no opportunity to assess his credibility in

any   other       light. 3         Simply   put,         what    little   the     government

presented        to     support       the   drug          weight     calculation       cannot

constitute a preponderance of the evidence.

      The       government’s         proffer        of    other     witnesses--witnesses

never presented to the probation officer, much less the court--

hardly redresses the lack of evidence.                          “Testifying about facts

is the function of the witness, not of the lawyer.”                                Kalina v.

Fletcher, 522 U.S. 118, 130 (1997); see also Int’l Woodworkers

v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1273 (4th Cir.

1981)     (“The       roles   of    witness     and       advocate    are     fundamentally

inconsistent . . . .”).               A prosecutor’s mere proffer of evidence

provides       “no     evidence      from   the      sentencing      hearings      . . .    to

review.”        United States v. Lawrence, 47 F.3d 1559, 1568 (11th

Cir. 1995).           Thus, these extraneous statements cannot help the

government surmount its burden.

      I   am     mindful      that    factual       determinations          of   credibility

generally remain the province of the district court.                               But “[i]t

is the opportunity to hear the witness testify and observe his

manner and demeanor on the stand which places the district court

      3
       The district court commented that Robinson “could have
called [Battle] to the stand, at this hearing.” J.A. 132. But
such a statement misconstrues the burden, which properly
belonged to the government.


                                               23
in   a    better      position      to    judge       credibility        than        that    of    an

appellate        court     which    must        rely    on     a    cold       paper    record.”

Phillips v. Crown Cent. Petroleum Corp., 602 F.2d 616, 636 (4th

Cir. 1979) (Widener, J., concurring and dissenting).                                   Here, the

district court itself relied on a cold paper record--one riddled

with      contradictions.               Such     dubious       findings         are     not       “so

sacrosanct       as   to    evade       review.”        Jiminez         v.   Mary      Washington

Coll., 57 F.3d 369, 379 (4th Cir. 1995).



                                               III.

         The    majority    declares           that    Robinson         made    a     considered

decision and should have to live with the consequences.                                           But

that rationale upends the equities--and, indeed, facts--of the

case before us.            It is not Robinson who seeks a mulligan, but

the government.

         When Robinson objected to the PSR--before the hearing--the

government was put on notice that its “evidence” was suspect.

Yet it did not produce Battle.                   Nor did it produce the probation

officer who interviewed Battle.                   And it had never even submitted

the other witnesses’ statements to the probation officer in the

first place.          Despite its lack of preparation, the government

was presented--as the majority sees it--with a win-win scenario:

either     it    would     have     a    second       chance       to   do     the     job    right

(securing an even longer sentence), or it would get a pass on

                                                24
the evidentiary standard.           “In this case, the district court did

not ensure--as it was obligated to--that the Government carried

its burden of proof.”      Lawrence, 47 F.3d at 1568.

      Thus, I would vacate and remand with instructions that the

district court resentence Robinson on the record--but without

crediting    Battle’s    statements     as    to   drug   weight.     Any    other

result would grant the government the very benefit--a second

chance to present evidence--that it does not merit.                   See, e.g.,

United States v. Archer, 671 F.3d 149, 168 (2d Cir. 2011) (“The

consensus among our sister circuits is that generally where the

government knew of its obligation to present evidence and failed

to do so, it may not enter new evidence on remand.”); United

States v. Otey, 259 F. App’x 901, 903 (8th Cir. 2008) (“[T]he

Government had sufficient notice of Otey’s factual objection to

the   loss   amount     that   it    should    not   be    afforded    a    second

opportunity to present additional evidence on this issue.”).

      The majority prefers to hold Robinson to a bargain he never

made.   For this reason, I respectfully dissent from Part II of

the majority opinion.




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