UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5680

ANDRE WILLIAMS, a/k/a Andre

Curry, a/k/a Drey,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-93-48)

Submitted: July 23, 1996

Decided: August 6, 1996

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Marcia Gail Shein, NATIONAL LEGAL SERVICES, INC., Atlanta,

Georgia, for Appellant. William D. Wilmoth, United States Attorney,

Thomas O. Mucklow, 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Unpublished opinions are not binding precedent in this circuit.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:

Andre Williams appeals from a district court judgment resentencing him following remand by this court to determine whether Williams' sentence for various drug related offenses was improperly

enhanced based on information Williams provided pursuant to his

plea agreement. In our initial consideration of this case, the controversy centered on whether the probation officer, in violation of the

guidelines and the plea agreement, relied on Williams' own affidavit,

in which he extensively recounted his involvement in the drug trade,

in recommending an enhancement for being an organizer or leader of

a criminal activity involving five or more participants, or which was

otherwise extensive, pursuant to United States Sentencing Commission, Guidelines Manual, § 3B1.1(a) (Nov. 1993). We found it impossible to ascertain from the record whether the probation officer relied

on the affidavit, and remanded for the district court to consider the

matter.

On remand, the district court conducted a hearing, at which the

probation officer testified that his reference to the affidavit was inadvertent, that he was aware at the time he prepared his report that the

guidelines prohibited reliance on the affidavit, and that he did not in

fact do so. He stated that his recommendation was essentially based

on information provided to him by DEA special Agent Kenneth Winkie, and his concurrence with Winkie that this evidence established

Williams' position as an organizer or leader. This information

included excerpts from grand jury testimony of various individuals

who testified to their role and the roles of others in the drug distribution network of which Williams was a part. Winkie also provided affidavits from some of these individuals.

In this appeal, Williams no longer seriously pursues the position

that his sentence enhancement was improperly based on information

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provided in his own affidavit. In this vein, we note that the district

court expressly credited the probation officer's testimony that he did

not consider the affidavit. The focus of this appeal is Williams' contention that the sentencing court improperly applied the enhancement

again on remand based on grand jury testimony which, in Williams'

view, lacks sufficient reliability to be considered in determining the

applicability of an enhancement. We disagree.

Williams first argues that the grand jury testimony should not have

been considered because it was inadmissible hearsay to which no recognized exceptions apply. In determining facts relevant to sentencing,

however, courts are not limited to consideration of evidence which

would be admissible at trial. 18 U.S.C. § 3661 (West 1985 & Supp.

1996). A sentencing court may even consider uncorroborated hearsay,

so long as the defendant is provided an opportunity to rebut or explain

it. See United States v. Falesbork, 5 F.3d 715, 722 (4th Cir. 1993).

Thus, section 6A1.3(a) of the guidelines, which provides that otherwise inadmissible evidence may be considered so long as the information contains "sufficient indicia of reliability to support its probable

accuracy," does not restrict the court's ability to consider reliable

hearsay. See United States v. Bowman, 926 F.2d 380, 381 (4th Cir.

1991). In keeping with these principles, sentencing courts may rely on

grand jury testimony so long as it is found to be sufficiently reliable.

See United States v. Williams, 10 F.3d 910, 914 (1st Cir. 1993);

United States v. Matthews, 5 F.3d 1161, 1164 (8th Cir. 1993); United

States v. Campbell, 985 F.2d 341, 347-48 (7th Cir. 1993).

The district court specifically found the grand jury testimony to be

reliable in this case, based on the testimony of agent Winkie. Winkie

reviewed the grand jury testimony in its entirety, and concluded that

regarding Williams' role in the drug distribution network, the grand

jury witnesses provided information consistent with each other, with

personal interviews he conducted with and affidavits he received from

some of those witnesses, and with police investigation reports. Winkie testified that his findings regarding Williams' role in the offense

were based on the "totality of everything," and that he was able to

verify the reliability of all information, including grand jury testimony, by cross-referencing and cross-checking it against other information obtained from various sources.

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Agent Winkie's verification efforts provided an adequate basis for

the court to conclude that the grand jury testimony in this case was

sufficiently reliable to be considered at sentencing, and for the court

to rely on the recommendation of Winkie and the probation officer to

find, by a preponderance of the evidence, that Williams was an organizer or leader under § 3B1.1(a). We note but reject the suggestion

raised in Williams' reply brief that this Court apply a "clear and convincing" evidence standard to sentencing enhancement issues. See

McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986); United States v.

Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.), cert. denied, 493

U.S. 943 (1989).

Accordingly, the judgment of the district court is affirmed. 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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