UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4021

MICHAEL RAY SHIFFLETT,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CR-91-33)

Argued: April 8, 1998

Decided: September 24, 1998

Before WIDENER, MURNAGHAN, and MICHAEL,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Robert P.

Crouch, Jr., United States Attorney, Jennie L.M. Waering, Assistant

United States Attorney, Kenneth N. Sorenson, Assistant United States

Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In a prior opinion, a panel of this court reversed the conviction of

Michael Ray Shifflett on a charge of engaging in a continuing criminal enterprise ("CCE"), and remanded the case to the district court for

resentencing. United States v. Shifflett, No. 93-9563, 1995 WL

125506 (4th Cir. Mar. 23, 1995) (unpublished) (per curiam). The

panel further concluded that the district court had committed reversible error by entering an order of forfeiture without first determining

whether the forfeiture was proportional to Shifflett's crimes of conviction, and ordered the district court on remand to perform a proportionality review. Id.

Shifflett now appeals the sentence imposed on remand, arguing that

the district court failed to make adequate findings regarding the quantity of drugs for which Shifflett was responsible. He also contests the

recommended finding contained in the presentence report, arguing

that it is based on unreliable evidence. According to Shifflett, the reliable evidence of drug weight yields a figure materially lower than that

recommended by the presentence report. Shifflett also appeals the district court's conclusion that the criminal forfeiture of his property was

not constitutionally excessive.

Finding no error in Shifflett's sentence or the order of forfeiture,

we affirm. Jurisdiction in the district court was proper pursuant to 18

U.S.C. § 3231. We have jurisdiction of the appeal under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a).

 2
I

A

Following a trial in the United States District Court for the Western

District of Virginia, a jury convicted Shifflett of five offenses related

to his distribution of marijuana and cocaine over a ten-year period,

including a charge that Shifflett had engaged in a continuing criminal

enterprise. See 21 U.S.C. § 848. Shifflett's sentence was calculated

under § 2D1.5 of the United States Sentencing Guidelines, which provides that the base offense level for a CCE conviction shall be the

greater of four plus the offense level from § 2D1.1, or 38. The United

States Probation Officer prepared a presentence report which concluded that Shifflett was responsible for 2,130.32 kilograms of marijuana, producing an offense level of 32 under § 2D1.1.1 That number

was increased by four, yielding a total offense level of 36. Because

the Sentencing Guidelines require a minimum offense level of 38 for

a CCE conviction, those calculations were disregarded and Shifflett

was assigned a base offense level of 38.

On appeal, we held that there was insufficient evidence to support

Shifflett's CCE conviction. Therefore, we reversed the conviction and

remanded for resentencing. After Shifflett's case was remanded to the

district court, the probation officer prepared an addendum to the original presentence report. The addendum again recommended that Shifflett be assigned responsibility for 2,130.32 kilograms of marijuana,

and assigned Shifflett a base offense level of 32.

Shifflett objected to the probation officer's recommendation, arguing that a careful review of the trial testimony supported attribution

to Shifflett of no more than 742.603 kilograms of marijuana,2 and that

_________________________________________________________________

1 The total recommended drug weight included: (1) the weight of the

marijuana for which Shifflett could be held accountable; (2) the weight

of the cocaine for which Shifflett was responsible, converted into drug

weight in terms of marijuana; and (3) $154,446.46 in unexplained

income converted into drug weight in terms of marijuana.

2 According to Shifflett, the evidence revealed that he was responsible

for 16.803 kilograms of marijuana and 3.629 kilograms of cocaine. After

converting the cocaine weight to marijuana weight, Shifflett calculated

a total drug weight of 742.603 kilograms.

 3
the government had failed to present any reliable evidence that would

support the attribution to Shifflett of more than 2,000 kilograms. Shifflett also denied responsibility for the drugs attributed to him on the

basis of the trial testimony of William Ryan, arguing that Ryan perjured himself. In support, Shifflett presented the affidavit of Glen

Fowler, in which Fowler averred that Ryan had been untruthful when

he testified that he had purchased drugs from Shifflett. Fowler

claimed that he and Ryan had often used drugs together and that he

knew all of Ryan's drug sources, but that he had"never heard of any

drug dealings that mentioned the name of Michael Ray Shifflett."

On September 23, 1996, the district court issued a memorandum

opinion overruling Shifflett's objection to the recommended finding

contained in the presentence report. The district court first concluded

that the mandate of this court did not permit Shifflett to reopen the

issue of drug weight. Alternatively, however, the district court held

that the probation officer's calculation of drug weight in the presentence report was accurate.

Shifflett was sentenced on December 18, 1996. At that time, Shifflett submitted to the court a transcript of a telephone conversation

between Gavin White and Shifflett's trial counsel. In that conversation, White admitted that he had purchased drugs from prosecution

witness Wilson Steppe, but asserted that he had never seen Shifflett

deliver anything to Steppe, and denied having purchased drugs from

Shifflett. White's statement directly contradicted a DEA report,

admitted at trial, which stated that White had described a transaction

between White and Shifflett involving one ounce of cocaine, and had

witnessed a delivery from Shifflett to Steppe of ten ounces of cocaine.

Shifflett argued that White's refutation of the report required the

exclusion of eleven ounces of cocaine from the drug weight attributed

to Shifflett. The district court refused to reduce the drug weight, however, concluding that Shifflett's effort to challenge the drug quantity

established in the presentence report was "totally beyond the scope of

the remand."

In sentencing Shifflett, the district court adopted the drug weight

finding recommended by the presentence report and assigned Shifflett

a base offense level of 32. Shifflett has appealed.

 4
B

Shifflett first argues that the district court erred by refusing to consider the issue of drug weight de novo. We agree that the mandate

issued by this court permitted reconsideration of drug quantity.

Although the original presentence report calculated the quantity of

drugs attributable to Shifflett, drug weight was not a factor relied on

by the district court in sentencing Shifflett. As a consequence, Shifflett had no reason to contest the presentence report's recommended

finding on drug weight. Following the reversal of Shifflett's CCE

conviction, however, drug weight became the primary determinant of

Shifflett's base offense level. Under those circumstances, we conclude that the district court was authorized to consider the question of

drug weight de novo. See United States v. Bell , 5 F.3d 64, 67 (4th Cir.

1993) (holding that when a "mandate of the appellate court instructs

or permits reconsideration of sentencing issues on remand, the district

court may consider the issue de novo, entertaining`any relevant evidence on that issue that it could have heard at the first hearing'")

(quoting United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.

1992)); United States v. Whren, 111 F.3d 956, 960 (D.C. Cir. 1997)

(permitting consideration of "such new arguments . . . as are made

newly relevant by the court of appeals' decision" and stating that "[a]

defendant should not be held to have waived an issue if he did not

have a reason to raise it at his original sentencing"), cert. denied, 118

S. Ct. 1059 (1998).

We find that Shifflett is mistaken, however, in claiming that the

district court failed to consider his objections to the presentence

report. With the exception of the evidence regarding the DEA report,

the district court did not refuse to hear Shifflett's objections, but

rather, permitted Shifflett to present his reasons for disagreeing with

the presentence report and to examine the probation officer regarding

the basis for the recommended finding.

We agree with Shifflett that the district court erred when it refused

to consider Gavin White's statement, which contradicted evidence

that the probation officer relied on in calculating drug weight. Nevertheless, we conclude that the error does not require reversal, because

 5
the exclusion of the 11 ounces attributed to Shifflett on the basis of

the DEA report would have no material effect on his sentence.3

We reject Shifflett's contention that the district court failed adequately to resolve his objections to the presentence report's recommended finding on drug weight. Although the district court must

decide disputed factual issues at sentencing, United States v. Gilliam,

987 F.2d 1009, 1013 (4th Cir. 1993), it need not"separately recite its

findings as to each controverted matter," but may discharge its duty

by expressly adopting the recommended finding contained in the presentence report. United States v. Morgan, 942 F.2d 243, 245 (4th Cir.

1991); see United States v. McManus, 23 F.3d 878, 887 (4th Cir.

1994). The district court employed the latter approach here, stating in

a memorandum opinion: "After considering the evidence presented at

trial, the original and amended presentence reports, and defendant's

objections, this court would, if it returned to the issue, conclude that

the probation officer properly calculated the amount of drugs for

which defendant should be held responsible."

The sole remaining question is whether the district court clearly

erred in finding that Shifflett was responsible for more than 2,000

kilograms of marijuana. See McManus, 23 F.3d at 882; Morgan, 942

F.2d at 245. The government must prove by a preponderance of the

evidence the quantity of drugs for which a defendant should be held

accountable at sentencing. United States v. Hippolyte, 65 F.3d 1151,

1158 (4th Cir. 1995), cert. denied, 116 S. Ct. 1558 (1996). The court

is not limited to considering information that would be admissible

under the rules of evidence, but "may consider relevant information

without regard to its admissibility . . ., provided that the information

has sufficient indicia of reliability to support its probable accuracy."

United States Sentencing Guidelines Manual § 6A1.3(a). The district

court may rely on information contained in the presentence report

unless the defendant affirmatively shows "that the information in the

_________________________________________________________________

3 The Sentencing Guidelines provide for the assignment of a base

offense level of 32 if the defendant is responsible for more than 5 to 15

kilograms of cocaine or 1,000 to 3,000 kilograms of marijuana. The

exclusion of 11 ounces of cocaine would not lower the drug weight

attributable to Shifflett below the minimum thresholds of 5 kilograms of

cocaine or 1,000 kilograms of marijuana.

 6
presentence report is unreliable, and articulate[s] the reasons why the

facts contained therein are untrue or inaccurate." United States v.

Terry, 916 F.2d 157, 162 (4th Cir. 1990); United States v. Love, 134

F.3d 595, 606 (4th Cir.), cert. denied sub nom. Sheppard v. United

States, 118 S. Ct. 2332 (1998).

In calculating the quantity of drugs attributable to Shifflett, the probation officer relied on interviews of the task force agents who investigated the conspiracy, and testimony adduced at trial. Based on those

two sources of information, the probation officer concluded in the

presentence report that Shifflett was responsible for 60 to 100 pounds

of marijuana, and 10 to 12 kilograms of cocaine over the life of the

conspiracy.

There is ample support in the trial record for the probation officer's

conclusions regarding the quantity of marijuana attributable to Shifflett. The evidence showed that Shifflett distributed marijuana from

the late 1970s until 1989, when he began distributing cocaine. Raymond Sipe testified that between 1987 and 1989, he purchased at least

66 pounds of marijuana in El Paso, Texas, to deliver to Shifflett in

Virginia;4 Wilson Steppe, 10 pounds; and James Wells, approximately 10-11 pounds. In short, the evidence showed that Shifflett was

responsible for at least 86 pounds of marijuana in the late 1980s

alone.

Shifflett concedes that the testimony of witnesses at his trial established his responsibility for at least 3.629 kilograms of cocaine. Shifflett disregards, however, William Ryan's testimony that he watched

Shifflett cut up a full kilogram of cocaine into smaller portions for

resale.5 Other witnesses testified to the presence of large quantities of

_________________________________________________________________

4 Shifflett omits from his calculations of drug weight 50 pounds that

Sipe purchased for Shifflett but never delivered because he was apprehended at a United States Border Patrol Checkpoint. The marijuana,

however, is plainly attributable to Shifflett under the relevant conduct

provisions of the Guidelines. See United States Sentencing Guidelines

Manual § 1B1.3.

5 We perceive no error in the district court's decision to credit Ryan's

sworn testimony rather than Fowler's allegation of perjury. Fowler's

claim that he knew all of Ryan's drug suppliers merely because he had

shared drugs with Ryan on numerous occasions is not persuasive evidence that Ryan lied under oath about his drug transactions with Shifflett.

 7
cocaine at two parties given by Shifflett, although they could not estimate the quantity.

Furthermore, Shifflett overlooks Wells' testimony that Shifflett had

lost $50,000 in an attempt to purchase cocaine from a supplier in

Florida. It was established at trial that Shifflett's cost for an ounce of

cocaine was generally $700. At that price, a $50,000 transaction

would have involved approximately 2.025 kilograms of cocaine. See

U.S.S.G. § 2D1.1 cmt. 12 (stating that, in estimating drug weight, a

court may consider, "for example, the price generally obtained for the

controlled substance"). Shifflett told Wells that he made up to

$20,000 per week selling drugs. Shifflett charged his cocaine dealers

$1,500 for an ounce of cocaine. Based on those figures, the evidence

suggested that Shifflett was selling up to 378 grams of cocaine per

week. At that rate, Shifflett could have sold 10 kilograms of cocaine

in six months; given that the conspiracy to distribute cocaine lasted

approximately two years, we discern no error in the district court's

attribution to Shifflett of 10 to 12 kilograms of cocaine.

Shifflett's computation of drug weight is based solely on the testimony of witnesses regarding specific purchases made from or for

Shifflett. There was substantial evidence, however, that those specific

sales did not reflect the full extent of Shifflett's involvement in the

distribution of marijuana and cocaine. Therefore, we conclude that the

district court's finding that Shifflett was responsible for more than

2,000 kilograms of marijuana is fully supported by the record. We do

not reach Shifflett's remaining argument that the information provided to the probation officer by the task force agents was unreliable.

II

A

Following Shifflett's convictions, the jury returned a special verdict of forfeiture against Shifflett's interest in two parcels of real

estate and three vehicles, having concluded that each item was either

purchased with proceeds of Shifflett's narcotics crimes or used to

facilitate those crimes. See 21 U.S.C. § 853(a). Without performing

a proportionality review, the district court ordered the criminal forfeiture of Shifflett's realty and other property.

 8
On appeal, this court held that the district court had erred by entering an order of forfeiture without determining whether the forfeiture

was proportional to the crime of conviction. Accordingly, the order

of forfeiture was vacated and the district court was instructed on

remand to perform a proportionality review before entering a forfeiture order.

On remand, the district court held that the forfeiture of Shifflett's

property was not constitutionally excessive. The court noted that Shifflett was subject to a fine in the range of $25,000 to $6 million, see

United States Sentencing Guidelines Manual § 5E1.2(c)(4), and that

the value of the forfeited property was well within those limits. The

court continued: "Given the length of the conspiracy, the amount of

drugs involved, the number of participants, and the conspiracy's

effect on the community, it cannot be said that the forfeiture of defendant's land, house, and truck would be a disproportionate punishment."

B

Because a criminal forfeiture ordered pursuant to 21 U.S.C.

§ 853(a) is an element of the sentence imposed following a defendant's conviction for substantive drug offenses, and therefore properly characterized as punishment, see Libretti v. United States, 516

U.S. 29, 38-39 (1995), our sole inquiry in analyzing whether the forfeiture is constitutionally excessive is whether the forfeiture "is

grossly disproportional to the gravity of a defendant's offense."

United States v. Bajakajian, 118 S. Ct. 2028, 2036 (1998); see United

States v. Wild, 47 F.3d 669, 676 (4th Cir. 1995) (stating that the

excessiveness inquiry "beckons a comparison of the value of the

property being forfeited to the gravity of the offense committed by the

defendant and the nature and extent of the defendant's activities").

We review the proportionality determination of the district court de

novo, Bajakajian, 118 S. Ct. at 2037, and must accept the district

court's factual findings unless they are clearly erroneous, id. at 2037

n.10.

Shifflett does not contest the forfeiture of his vehicles, but challenges only the forfeiture of two parcels of property, one approximately 3 acres in size, the other approximately 18 acres. We conclude

 9
that the forfeiture of those two parcels of realty does not violate the

Excessive Fines Clause. The district court found, and Shifflett does

not dispute, that the combined value of the property is "well within"

the range of fines permitted by the Sentencing Guidelines and statutory limits, which allow the imposition of a fine between $25,000 and

$6 million. See Bajakajian, 118 S. Ct. at 2037 (noting that "judgments

about the appropriate punishment for an offense belong in the first

instance to the legislature"). We agree with the district court that the

forfeiture is justified in light of the length of Shifflett's involvement

in narcotics trafficking, the breadth of the conspiracy, and the impact

of Shifflett's activities on the community.

Shifflett argues, however, that the district court should not have

ordered the forfeiture of the 3-acre parcel of land because it was separable from the 18-acre tract, citing our decision in United States v.

Chandler, 36 F.3d 358, 365 (4th Cir. 1994) (stating that the third consideration in the instrumentality test for determining whether an in

rem forfeiture is constitutionally excessive is"the possibility of separating offending property that can readily be separated from the

remainder"). Shifflett conveniently ignores the jury's verdict that the

smaller tract, independent of the larger parcel, was forfeitable as

either an instrumentality or proceed of Shifflett's drug crimes.6 Shifflett's reliance on Chandler, moreover, is misplaced; we have

expressly rejected the applicability of the Chandler instrumentality

test to criminal in personam forfeitures. Wild, 47 F.3d at 674.

Finally, we find no merit to Shifflett's contention that the district

court committed reversible error by issuing a final order of forfeiture

before imposing sentence. See 18 U.S.C.§ 3554 (providing that the

_________________________________________________________________

6 To the extent Shifflett attempts to argue that the evidence was insufficient to support the jury's verdict, we find that Shifflett waived that argument by failing to raise it in his first appeal. See United States v. Bell,

988 F.2d 247, 250 (1st Cir. 1993). The mandate of this court expressly

provided that the sole question to be decided by the district court on

remand was that of proportionality. For the same reason, we decline to

consider Shifflett's argument that the district court erred in ordering the

forfeiture of the 18-acre parcel without providing a remedy for value

Shifflett allegedly added to a house located on the property following his

arrest.

 10
district court "in imposing sentence upon a defendant . . . shall order,

in addition to the sentence that is imposed pursuant to the provisions

of section 3551, that the defendant forfeit property"). The forfeiture

order, though entered before Shifflett's final sentencing hearing, was

expressly incorporated into the Judgment and Commitment Order

issued by the district court following the imposition of sentence, and

Shifflett has failed to show that he suffered any prejudice as a consequence of the district court's premature issuance of the final order of

forfeiture.

III

To summarize, we hold that the district court adequately considered and resolved Shifflett's objections to the presentence report on

the issue of drug weight, and that the district court's finding is supported by the testimony adduced at Shifflett's trial. Therefore, we

affirm Shifflett's sentence. We also conclude that the forfeiture of

Shifflett's property was not disproportional to his crimes of conviction, and therefore affirm the order of forfeiture entered by the district

court.

AFFIRMED

 11