UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4028

PRINCE LINTON,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, Chief District Judge.

(CR-97-22)

Submitted: July 31, 2001

Decided: September 5, 2001

Before WILKINS, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Samuel J. Davis, John M. Purcell, DAVIS & DAVIS, Union Town,

Pennsylvania, for Appellant. Patrick M. Flatley, United States Attorney, Robert H. McWilliams, Jr., Assistant United States Attorney,

Sharon L. Potter, Assistant United States Attorney, Wheeling, West

Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Prince Linton pled guilty in 1997 to aiding and abetting the distribution of .24 grams of crack cocaine, 21 U.S.C.A. § 841(a) (West

1999). He failed to appear for sentencing. Almost three years later, as

authorities were about to arrest him, Linton turned himself in. He was

sentenced in December 2000 to a term of 240 months imprisonment.

Linton appeals his sentence, alleging that the district court erred in

determining the quantity of crack attributable to him, in relying on

information in the presentence reports of his co-defendants, and in

making a two-level adjustment for aggravated role under U.S. Sentencing Guidelines Manual § 3B1.1(c) (2000). Linton has also moved

for leave to file a pro se supplemental brief raising additional issues,

and has filed a pro se petition for emergency relief seeking to correct

the record on appeal.* We grant leave to file the pro se brief, deny

the petition for emergency relief, and affirm. 

At Linton’s sentencing hearing, the government presented testimony from most of his co-defendants who had been scheduled to testify at his initial sentencing in 1997. However, their testimony

differed markedly from statements they had given to investigators and

before the grand jury three years earlier. The district court referred to

the presentence reports of several witnesses to remind them of the

amount of crack to which they themselves had stipulated when they

were sentenced. Nonetheless, their testimony remained vague as to

*Three months before Linton was sentenced, the government notified

his attorney that "drug-related evidence" offered against him and other

defendants would be retested because of inconsistencies discovered in

the procedure used at the original laboratory. The issue was not raised at

Linton’s sentencing. He now seeks to have the substance offered against

him retestd independently. In light of Linton’s guilty plea to crack distribution and failure to challenge the drug type below, we do not find that

the petition should be granted. 

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Linton’s involvement, and they professed to recall dealing with only

small amounts of crack. The district court continued sentencing and

asked the probation officer to look into the possibility that the witnesses had been intimidated. At a second hearing, the probation officer reported that none of the witnesses admitted to receiving any

direct threats or intimidation, but that a number of them said they felt

distinctly uncomfortable giving testimony against Linton because

they feared repercussions to themselves or their families. The district

court decided that testimony of all but one witness at the first hearing

was unreliable. The court determined the quantity of crack attributable to Linton by relying on the testimony of the one reliable witness,

examining the grand jury testimony of two witnesses, and the debriefing statements of two witnesses. The court determined that Linton

was responsible, for sentencing purposes, for 423.1 grams of crack.

Linton contends that the court failed to rely on the most reliable

evidence, that is, the sworn testimony of the witnesses at the sentencing hearing. He further asserts that the district court’s estimation of

the drug quantity is too speculative to be affirmed. However, the court

determined that the witnesses’ testimony was not credible. We find

no error in the court’s decision to resort to other evidence it deemed

more reliable. To resolve disputed issues at sentencing, the district

court may consider any relevant information that has "sufficient indicia of reliability to support its probable accuracy." USSG § 6A1.3. To

protect the defendant’s right to be sentenced on accurate information,

he must be afforded the opportunity to rebut or explain hearsay evidence that he claims is erroneous. United States v. Helton, 975 F.2d

430, 434 (7th Cir. 1992). 

Linton cannot claim that he did not have access to the grand jury

testimony and debriefing statements considered by the court, or that

he had no opportunity to explain or rebut the information. Moreover,

the sentencing guidelines permit the district court to estimate the drug

quantity when there has been no seizure of drugs or when the amount

seized does not reflect the scale of the offense. USSG § 2D1.1, cmt.

n.12. 

Linton also challenges the district court’s use of his co-defendants’

presentence reports. As previously mentioned, the sentencing court

may not rely on factual information from sources not disclosed to the

UNITED STATES v. LINTON 3
defendant. Helton, 975 F.2d at 434. To do so would deprive the

defendant of his opportunity to explain and rebut any claimed errors

in the information. See also United States v. Smith, 13 F.3d 860, 867

(5th Cir. 1994) (holding that sentencing court may not adopt facts

from co-defendant’s presentence report that was not disclosed to

defendant). However, in this case, the district court did not use the

presentence reports in such a manner. The court used them simply to

test the credibility of the witnesses testifying under oath. In determining Linton’s relevant conduct, the court relied on other information

from sources available to Linton. 

Linton also contests the district court’s determination that he had

an aggravated role in the offense. We find that the court did not

clearly err in finding that Linton, who regularly packaged and supplied a significant quantity crack to at least five crack dealers over at

least six months, had a leadership role. United States v. Engleman,

916 F.2d 182, 184-85 (4th Cir. 1990). 

We therefore affirm the sentence. We grant Linton’s motion for

leave to file a pro se supplemental brief. We deny his motion for

emergency relief. We have considered the issues raised by Linton in

his pro se supplemental brief and find them to be without merit. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process. 

AFFIRMED

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