UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEONARD NORMIL, III, a/k/a Colin

No. 94-5830

Courtney Henderson, a/k/a Jamaican

Tony, a/k/a Tony Henderson, a/k/a

Colin Courtney Atwell,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5848

DAVID ANTHONY HENDERSON,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Greenville.

Terrence W. Boyle, District Judge.

(CR-93-62-BO)

Argued: July 18, 1996

Decided: November 13, 1997

Before MURNAGHAN and ERVIN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded for resentencing by unpublished opinion.

Judge Ervin wrote the opinion, in which Judge Murnaghan and Senior

Judge Phillips joined.
COUNSEL

ARGUED: Paul K. Sun, Jr., SMITH, HELMS, MULLISS &

MOORE, L.L.P., Raleigh, North Carolina, for Appellants. John

Douglas McCullough, Assistant United States Attorney, Raleigh,

North Carolina, for Appellee. ON BRIEF: Carl L. Epstein, Indianapolis, Indiana, for Appellant Normil. Janice McKenzie Cole, United

States Attorney, Ted F. Mitchell, Third Year Law Student, Raleigh,

North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Leonard Normil, III and David Anthony Henderson challenge their

sentences following convictions for offenses in connection with a

drug distribution conspiracy in New Bern, North Carolina. For the

reasons that follow we vacate their sentences and remand both cases

to the district court for further proceedings consistent with this opinion.

I.

In May 1990, the City of New Bern Police Department and the

Drug Enforcement Administration (DEA) began a joint investigation

of a drug distribution conspiracy involving Normil, Henderson, and

others. On September 1, 1993, officers stopped codefendant Valerie

Gibbs and discovered 53.9 grams of crack on her person. On November 30, 1993, DEA agents interviewed Valerie Gibbs concerning her

knowledge of the drug distribution activities of Normil, Henderson,

and others. Gibbs, acknowledged by the government to be a crack

addict, gave a statement to the government alleging that, on one occasion, Normil and Henderson came to the home of her boyfriend--

 2
codefendant Harold Pollock--with four bags of crack. (J.A. at 130-

31). She estimated that the bags were about the size of the package

she had when she was arrested: 53.9 grams. Gibbs also alleged that

Normil, codefendant Elvin Floris, or Henderson had come to Pollack's home "on a daily basis" from September 1992 to September

1993, leaving multiple 1/16 ounce packages (about 2 grams). Gibbs'

statement to the government was never provided to Normil or Henderson, and is not in the record. The U.S. Attorney who negotiated the

plea agreements was likewise unaware that Gibbs had made a statement, although the statement was available to him had he known of

its existence.

In a fourteen-count superseding indictment issued December 7,

1993, appellants were charged--along with five other codefendants--

with conspiracy to possess with intent to distribute cocaine base, in

violation of 21 U.S.C. § 846; aiding and abetting the distribution of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;

and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1).

Normil was also charged with engaging in a continuing criminal

enterprise, under 21 U.S.C. § 848; making a false statement on a passport application, under 18 U.S.C. § 1542; fraud in connection with

identification documents, under 18 U.S.C. § 1028(a)(1); and making

a false representation as a citizen of the United States, under 18

U.S.C. § 911. Initially, both men pled not guilty to all charges.

On July 18, 1994, Normil pled guilty to Count Three, which

charged the distribution of crack and aiding and abetting the distribution, and Count Twelve, which charged the giving of false statements

in a passport application. Normil entered into a plea agreement in

which the estimated drug quantity was based upon the amount seized

or purchased by the government in its investigation--about 175

grams--triggering an initial base offense level of 34 (150-500 grams).1

_________________________________________________________________

1 In a letter dated September 13, 1994, addressed to Normil's counsel,

the U.S. Attorney stated, "This letter is to confirm our recent telephone

conversation wherein I confirmed to you that, at the time the plea agreement was entered into, the parties contemplated that the government

could prove the defendant's involvement with 179.5 grams of cocaine

base. This figure represents the amount of cocaine base purchased or

seized from the participants in this conspiracy."

 3
See U.S.S.G. § 2D1.1(c)(3). (J.A. at 48-52). The parties also agreed

to a three-level downward adjustment for acceptance of responsibility

under U.S.S.G. § 3E1.1. Normil thus reserved the right to appeal a

sentence exceeding level 31.

Similarly, on August 29, 1994, Henderson entered a guilty plea to

Count Six, which charged distribution of cocaine base and aiding and

abetting in the distribution. The parties stipulated that Henderson was

responsible for the amount of crack alleged in Count 6 (to which Henderson was pleading guilty) and in Count 10--a total of 32.6 grams.2

Both plea agreements specified that the stipulations and recommendations were not binding on the court:

 The Defendant acknowledges that the Level specified

above is an estimate from information known at present. It

is not a promise and is not binding on the Court. The Defendant agrees that should the sentence imposed exceed Level

31, this would not affect the validity of the guilty plea, but

merely would allow the Defendant to appeal the Guideline

range.

 The Defendant understands . . . that the Court is not

bound by any sentence recommendation or agreement as to

Guideline application, that the sentence has not yet been

determined by the Court, that any estimate of the sentence

received from any source is a prediction not a promise, and

that even if a sentence up to the statutory maximum is

imposed, the Defendant may not withdraw the plea of

guilty.

_________________________________________________________________

2 The stipulation was not contained in the plea agreement, but was later

memorialized in a separate document and filed with the district court.

(J.A. 63-7, 93-4). The stipulation specified that Henderson would "be

held responsible only for the amount of cocaine alleged in COUNTS SIX

and TEN of the Bill of Indictment, to-wit 6.9 grams as to COUNT SIX

and 25.7 grams as to COUNT TEN, and [ ][he] was in no way involved

in the violation set forth in COUNT THREE of said indictment." Count

Three charged a distribution and an aiding and abetting a distribution of

crack on June 10, 1993, involving Normil, Floris, Henderson, Harold

Pollack, and Valerie Gibbs.

 4
The government reserved the right at sentencing to present any evidence or information under 18 U.S.C. § 3661, and agreed not to "further prosecute the Defendant[s] for conduct constituting the basis for

the Indictment."

Before sentencing, the government provided the Gibbs statement to

the probation office to be used in preparing the pre-sentence reports

(PSRs) for both Normil and Henderson. In calculating Normil's sentence, the probation office began with Gibbs's statement that Pollack

received multiple two-gram packages of crack, took an average of

four grams per day, and multiplied it by every day between September 1, 1992 to August 1, 1993, arriving at a total amount of 1340

grams. In addition, based on Gibbs's statement about the four 53.9-

gram bags, the probation office added 215.6 grams. To that amount,

the probation office added 4690 grams based on information from

unidentified "investigative documents," estimating that seven other

street dealers involved in the conspiracy sold about two grams every

day from September 1992 to August 1993. Finally, the probation

office added the quantity actually seized or purchased by the

Government--174.9 grams--reaching a grand total of 6,420.5 grams

involved in the offense conduct. The new amount increased Normil's

base offense level to 40. Additionally, the probation officer recommended a four-level upward adjustment for being an organizer and

leader in a criminal enterprise. U.S.S.G. § 3B1.1(a).

At Normil's sentencing hearing on October 17, 1994, Normil

objected to the drug quantity calculation on the ground that the government used evidence which it had failed to disclose at the time of

the plea. Normil also argued that the calculations and their sources

were unreliable. The district court asked the probation officer to

explain how he arrived at the offense quantity. In essence, the probation officer explained that the estimate was based upon the information provided by Gibbs, as well as various unspecified investigative

documents. The court, observing that the probation officer had used

the most conservative figures and the most compact time period,

adopted the quantity contained in the PSRs. The court allowed a

three-level downward adjustment for acceptance of responsibility, and

imposed a two-level enhancement under U.S.S.G. § 3B1.1(c). Normil

was sentenced to 360 months' incarceration with five years' supervised release. In calculating Henderson's sentence, the probation

 5
office reported that he sold crack on two occasions: he sold 6.9 grams

with codefendant Floris, and he sold 25.7 grams on another occasion.

Based on the Gibbs statement, the probation office used the same calculus to hold Henderson accountable for at least 6,420.5 grams of

cocaine base. The probation office did not recommend an adjustment

for role in the offense. Nor did the office find a demonstration of

responsibility warranting a reduction under U.S.S.G.§ 3E1.1. Henderson's total offense level was 38. The probation office's recommendations were thus consistent with the stipulations in the plea

agreement that Henderson was not responsible for Count Three. J.A.

96-8, 101-2.

At Henderson's sentencing hearing on November 8, 1994, the district court again accepted the calculations of the probation office

based on the Gibbs statement and the investigation documents.

Accordingly, the court found Henderson responsible for 6,420.5

grams. The court also found Henderson to be an organizer. Further,

the court denied Henderson a three-level reduction for acceptance of

responsibility, noting that the adjustment would have no effect on his

sentence, since he would still be at or above level 40. Henderson was

sentenced to 420 months' imprisonment, followed by five years'

supervised release. These appeals followed.

II.

Whether the district court improperly considered information at

sentencing is a question of law, to be reviewed de novo. United States

v. Daughtry, 874 F.2d 213, 217-18 (4th Cir. 1989). Plea bargains are

evaluated using contract principles, but are subject to greater scrutiny

because of the constitutional rights at stake. United States v. Ringling,

988 F.2d 504, 506 (4th Cir. 1994).

Normil and Henderson argue that the plea agreements and stipulations precluded the district court from considering information which

the government did not disclose at the time of their plea bargains.

Normil argues that the commentary accompanying U.S.S.G. § 6B1.2

requires the government to disclose to a defendant all information to

be used in calculating the sentence.

 The Commission encourages the prosecuting attorney

prior to the entry of a guilty plea or nolo contendre plea

 6
under Rule 11 of the Federal Rules of Criminal Procedure

to disclose to the defendant the facts and circumstances of

the offense and offender characteristics, then known to the

prosecuting attorney, that are relevant to the application of

the sentencing guidelines. This recommendation, however,

shall not be construed to confer upon the defendant any right

not otherwise recognized in law.

The Guidelines commentary, Normil and Henderson contend, "must

be treated as an agency's interpretation of its own legislative rule, and

as such, interpretive or explanatory commentary is authoritative

unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." United

States v. Carroll, 3 F.3d 98, 102 (4th Cir. 1993). When Normil and

Henderson agreed to plead guilty, they believed that the relevant conduct to be used at sentencing would result in an initial base offense

level of 34. But in fact, the government already had the statement of

Valerie Gibbs which would lead to estimated drug quantities of more

than 30 times the amount that the government indicated it could prove

against Normil. Normil and Henderson contend that they were thus

denied the ability to make a knowing decision regarding the probable

consequences of their guilty pleas. Accordingly, they contend, this

court should provide them the benefit of their bargains by confining

the sentence to 175 grams of relevant conduct--the amount disclosed

to them in the plea negotiations. While conceding that the negotiating

U.S. Attorney did not purposely withhold the Gibbs statement, and

indeed, was unaware of that evidence, Normil and Henderson argue

that if the government is not required to disclose all of its evidence

of relevant conduct at the time of the plea bargain, prosecutors may

deliberately withhold such information and "blind-side" defendants.

Normil and Henderson also argue that the government, by relying

upon the additional information provided to the probation office, violated the provision of the plea agreement in which it agreed not to further prosecute the defendants for conduct constituting the basis for the

indictment. To the extent that a stipulation entered by the government

is essential to the defendant's bargain, it is binding. Santobello, 404

U.S. at 262. This is true even if the court is not bound by the stipulation. U.S.S.G. § 6B1.4(d), p.s. Thus, they contend that, although the

sentence is estimated and subject to the court's discretion, the govern-

 7
ment is bound by its promise as to the quantity forming the basis for

the defendants' sentences. They rely upon United States v. Hewitt,

942 F.2d 1270 (8th Cir. 1991). In that case, the Eighth Circuit held

that the "no further prosecution" clause included information used for

sentencing, and remanded for resentencing with instructions to consider only that information agreed to by the parties at the time of the

pleas.

Normil and Henderson also cite United States v. Tobon-Hernandez,

845 F.2d 277, 280 (11th Cir. 1988), in which the Eleventh Circuit

found:

 In this case, the government and Tobon-Hernandez

entered into an explicit plea agreement which stipulated that

the conspiracy charge related only to the 14 kilograms of

cocaine found in the automobile. Such a stipulation may not

have been required by law; such an agreement may not have

been wise; but, the government agreed; the government is

held to its agreements. As a direct result of the government's breach of the plea agreement through the introduction of evidence relating to the kilograms of cocaine found

in the house, the district court imposed a sentence on the

conspiracy count involving an amount of cocaine greater

than that stipulated to in the plea agreement.

The Tobon-Hernandez court likened the case to United States v.

Nelson, 837 F.2d 1519 (11th Cir. 1988), in which the government

entered into a plea agreement stipulating to certain facts, but submitted a PSR stating facts contrary to those stipulated to in the agreement. Id.

The government retorts that a sentencing court has broad discretion

to consider a wide range of information in arriving at its sentence,

including information contained in the PSR and crimes for which a

defendant has not been charged. The court is bound neither by the

sentencing recommendations of the government nor by the stipulations contained in a plea agreement. The sentencing court's discretion

to consider a broad range of available information should not be constrained, the government argues.

 8
However, this case is not a matter of constraining a trial judge's

access to information. Whether purposeful or not, the government

agreed to hold the defendants accountable for one amount, and then

presented to the court as the basis for sentencing offense conduct

amounts that were more than 30 times greater than that agreed upon.

Certainly, without knowledge of the existence of Gibbs's statement--

one of the primary bases for calculating the amount of cocaine--

Normil and Henderson could not make any kind of reasonably accurate assessment of the costs and benefits of pleading guilty to the

charges. This sentencing denied Normil and Henderson the benefit of

their bargain, and was fundamentally unfair. We could follow the reasoning of the Eighth and Eleventh Circuits, and award Normil and

Henderson specific performance of their plea bargains. However,

because of the terms of the plea agreements in question and the peculiar circumstances of these cases, we elect instead to vacate Normil

and Henderson's sentences and remand their cases to the district court

for re-sentencing in accordance with this opinion.

III.

The district court's determinations of facts underlying its application of the sentencing guidelines are reviewed for clear error. United

States v. McManus, 23 F.3d 878, 882 (4th Cir. 1994).

The government was required to provide sufficient evidence to

prove by a preponderance of the evidence the drug quantities alleged

in the PSR. United States v. McManus, 23 F.3d 878, 885 (4th Cir.

1994). The government must offer more than "conclusory statements," United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1992);

it must present evidence with "sufficient indicia of reliability to support its probable accuracy." U.S.S.G. § 6A1.3(a). p.s. United States v.

Gilliam, 987 F.2d 1009 (4th Cir. 1993).

Normil and Henderson challenge the information provided by the

probation office and relied upon by the district court, as uncorroborated, based on conjecture, and inherently unreliable. First, the probation office relied principally on the statement of informant Valerie

Gibbs. Based on her statement that her boyfriend Pollack received

drugs "on a daily basis," the office simplistically multiplied an estimated 4 grams by 335 days (11 months), allowing for no days off and

 9
overlooking the fact that Gibbs could not have seen such transactions

every day during that period. In addition, the office stated that "according to investigative reports, the organization had at least seven

individuals in addition to Harold Pollack selling crack cocaine on a

street level. (J.A. at 131). The office estimated that each dealer sold

two grams every day for the eleven month period. The probation officer admitted that he had no specific information regarding how often,

for how long, and in what quantities the dealers sold drugs, but he

relied on the two gram estimate from Gibbs and the opinion of a narcotics officer that two grams was reasonable. Finally, the probation

office relied on Gibbs's statement that Normil and Henderson came

to Pollack's house with "four big bags" of crack, which were about

the size of her own package. Normil and Henderson argue that the

description of "big" bags of crack is inconsistent with the comparison

to her own bag, which contained less than two ounces of crack.

In addition, Normil and Henderson assert that it was clear error to

accept without question the uncorroborated statement of Valerie

Gibbs, a known drug addict. They rely upon the decisions of other circuits calling for caution and close scrutiny of testimony by addictinformants, such as United States v. Miele, 989 F.2d 659 (3d Cir.

1993). In that case, the Third Circuit reversed the district court's

unquestioning reliance on information provided from an

addict/informant. See also United States v. Robison, 904 F.2d at 371-

72 (6th Cir. 1990). In this case, the defendants argue, the court did not

make any effort to assess Gibbs's credibility. She was not brought in

to testify at the sentencing, and the court made no inquiries as to her

veracity. U.S.S.G. § 6A1.3(a), p.s.

The government argues that it does not bear the burden of proving

the accuracy and reliability of the PSRs. Rather, the defendant has an

affirmative duty to show that the information contained in the PSR is

unreliable or untrue. United States v. Terry, 916 F.2d 157, 162 (4th

Cir. 1990). In the absence of such a showing, the sentencing court is

free to adopt the PSR's findings.

The bare and unsubstantiated opinion of a narcotics officer that two

grams is a reasonable estimate has no probative value. That leaves the

Gibbs statement and the "investigative reports." The information from

Gibbs is a flimsy nail from which to hang estimates. Above all, the

 10
probation officer's and the district court's reliance on unidentified

investigative documents cannot possibly permit the district court to

find specific drug amounts by the greater weight of the evidence.3

And multiplying the estimated quantity by every day of the year does

not seem a conservative estimate. Even though the standard of review

is quite deferential, we hold that the district court's findings that each

defendant should be held responsible for 6,420.5 grams of cocaine

base cannot be sustained by the meager record before us. Accordingly, the sentences are vacated and the defendants are granted new

sentencing hearings.

IV.

A.

To assist the district court at re-sentencing, we offer these additional observations. At sentencing, the court asked the probation officer to explain Normil's role in the offense. The probation officer

testified that the role in the offense enhancement was based upon the

statement of Gibbs:

The Court: Just tell me about his role in the offense.

Mr. Boggs: Basically, Your Honor, he worked with Mr.

Floris and Mr. Henderson on an equal basis to distribute

drugs in the Duck Hill area of New Bern. Okay, he was a

leader of this conspiracy as outlined in the indictment.

Count 2 of the indictment, he was identified as being the

leader of this criminal conspiracy.

The Court: What does that mean? I mean what did he do

to be the leader? Did he have an army and have formation

and give them orders?

_________________________________________________________________

3 We emphasize the fact that the probation office used these "unidentified investigative documents" as the sole basis for its assertion that 4,690

grams (out of a total of 6,420.5 grams) of crack should be attributed to

each defendant.

 11
Mr. Boggs: No, Your Honor.

The Court: Did he make trips to New York and buy suitcases full of cocaine and fly it down here? Tell me something about it.

. . . I know what his role in the offense was. He had more

than five folks that worked for him including--

. . . They were distributing drugs. They were transporting

drugs. Valerie Gibbs' role primarily was not to sell drugs

but to transport drugs at Mr. Normil's direction to the home

of Ronnie Pollack. Mr. Normil would often bring drugs into

the home of Harold Pollack.

. . . But basically he brought drugs into the community. He

hid the drugs in various places and he hid money in various

places including out in Mr. Pollack's yard and various

ditches, also out in the woods. And the crack cocaine which

was seized by officers, the 27.1 grams of crack that Valerie

Gibbs led the officers to was concealed in the woods. They

had received confidential information that Mr. Normil was

concealing the drugs out in the woods and they had set up

surveillance early one morning and observed him bring the

drugs out, go into the home of Harold Pollack. The drugs

were then given to Valerie Gibbs. Valerie Gibbs left the

home and transported drugs to Ronnie Pollock's home, and

Mr. Normil followed at a distance but was with her. And

then, of course, she was arrested and taken back and they

seized additional drugs and then she began to cooperate.

(J.A. at 80-81). Based on the probation officer's testimony, the court

imposed a two-level increase for manager, organizer or supervisor.

The government contends that this testimony meets the preponderance of the evidence standard. It argues that the defendants were basically street drug dealers who sold individually, but would

occasionally associate. There was no evidence to show that Normil

played the role of a leader over five people, or participated in greater

 12
amounts of the proceeds. The probation officer offered conclusory

statements that Normil was a leader, and then testified that Normil hid

drugs in various places. On remand the district court should make

specific identification of what evidence exists to support a leadership

role enhancement for Normil.

B.

Henderson contends that the district court's findings that he was a

conspirator and that his relevant conduct encompassed the entire conspiracy were clearly erroneous. In determining relevant conduct, the

court must find: 1) the scope of criminal activity which the specific

defendant agreed to undertake; and 2) the conduct in furtherance of,

or reasonably foreseeable in connection with, the defendant's jointly

undertaken criminal activity. U.S.S.G. § 1B1.3(a)(1)(B) & comment;

United States v. Banks, 10 F.3d 1044, 1058 (4th Cir. 1993). Henderson argues that the district court failed to make any individualized

determination of his relevant conduct. At sentencing, the probation

officer recited the facts of Henderson's specific conduct, consisting of

two sales. Then the officer recited the information from Gibbs's statements, including delivery of cocaine to Harold Pollack and one

instance of packaging cocaine. In addition, the officer presented an

alleged statement by an unnamed informant. No evidence linked Henderson to the alleged seven additional drug dealers, whose activities

accounted for 73% of the quantity which the court attributed to Henderson. On that basis, the district court found Henderson responsible

for all of the cocaine involved in the conspiracy.

The government argues that the court met the requirement of an

"independent resolution" by expressly adopting the findings contained

in the PSRs. The district court found that the PSRs showed by a preponderance of the evidence that Normil and Henderson employed at

least eight dealers, who were responsible for a total of 6,420.5 grams

of cocaine, and that because of the appellants' role in the conspiracy,

the entire amount was foreseeable and within the scope of the plea

agreements, thus no offense behavior in the conspiracy fell outside

the relevant conduct of both defendants. The court is allowed to consider all reliable information. United States v. Falesbork, 5 F.3d 715,

720 (4th Cir. 1993).

 13
Again, the fact that the PSR states that the appellants employed

eight dealers, who were responsible for 6,000 grams, does not mean

that it demonstrated that fact by a preponderance of the evidence. The

PSR contains no more than conclusory statements. The district court

conducted the hearing on these matters in a summary fashion. We,

accordingly, remand for the court's specific determination of what

evidence supports the relevant conduct assigned to each of the appellants.

C.

The court did not determine whether Henderson was eligible for a

two or three-level reduction for acceptance of responsibility, noting

that the reduction would have had no effect on his guideline range,

as he would still be at or above level 40. Since Henderson's base

offense level may be decreased, if he prevails on any issues in this

appeal, on remand, the district court should determine whether Henderson is entitled to a two or three level reduction for acceptance of

responsibility.

V.

For these reasons, we vacate the sentences imposed upon both Normil and Henderson, and remand these cases to the district court4 for

further proceedings consistent with this opinion.

VACATED AND REMANDED

_________________________________________________________________

4 We reject the defendants' requests that the re-sentencing proceedings

be set before a different district judge.

 14