* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-50428

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN DARNELL COBB,

also known as Martin Cobb,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-97-CR-49-1

- - - - - - - - - -

January 7, 1999

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Martin Darnell Cobb appeals his sentence after his

conviction by a jury of conspiracy to possess with intent to

distribute crack cocaine and two substantive counts of

distribution of crack cocaine.

Cobb argues that the district court clearly erred in finding

that the two-level enhancement pursuant to U.S.S.G. § 3B1.1(c)

applied. He argues that the evidence failed to show that he had

a supervisory role over any of the other alleged participants. 

Cobb’s argument at the sentencing hearing was directed against 
No. 98-50428

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the four-level increase of § 3B1.1(a), and he basically conceded

that the two-level adjustment under § 3B1.1(c) would be

appropriate. Therefore, we review the district court’s finding

for plain error. See United States v. Rodriguez, 15 F.3d 408,

414-15 (5th Cir. 1994). Johnny Taylor and Jimmy Bragewitz

testified that they and Remy Phillips sold crack for Cobb. This

testimony supports the district court’s finding that Cobb was

deserving of the two-level adjustment under § 3B1.1(c). The

district court did not plainly err in applying this adjustment.

Cobb argues that the district court erred in determining the

applicable drug quantity. He contends that the drug amount was

based on unreliable information. Cobb argues that the district

court erroneously relied upon the probation officer’s attribution

of a “kilo of crack cocaine” based upon Cobb’s admission to

Medford that he received a kilo of “powder” cocaine. The

district court's calculation of the quantity of drugs involved

for sentencing purposes is reviewed for clear error. See United

States v. Mergerson, 4 F.3d 337, 345 (5th Cir. 1993).

The probation officer stated that Cobb should be held

accountable for one kilo of “crack” cocaine. Earlier in the

Presentence Report (PSR), the probation officer stated that Cobb

had told Medford that he received his “Crack” from Mark Evans,

who got his “Crack” from two brothers in Houston. Cobb told

Medford that the cocaine was bought in the powdered form by the

kilo and that he had been to Houston with Evans. Cobb denied at

the sentencing hearing that he had told Medford that he bought a

kilo of crack in Houston.
No. 98-50428

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Even if Cobb did go to Houston with Mark Evans, it is not

clear from the record that Cobb ever admitted that he bought a

kilo of “crack” with Evans in Houston. His statement to Medford,

as related in the PSR, can be interpreted as meaning that Evans

bought the cocaine in powder form in Houston. There is no

evidence in the record that this entire kilogram of powder was

converted to crack for sale by Cobb. If Cobb possessed both

powder cocaine and crack cocaine, the district court was required

to convert both to marijuana under the drug equivalency table to

determine a single offense level. U.S.S.G. § 2D1.1, comment.

(n.10). The district court clearly erred in relying upon the

PSR’s representation that Cobb was responsible for one kilogram

of “crack.” Cobb’s sentence is VACATED, and this case is

REMANDED for resentencing. On remand, the district court shall

make specific findings regarding the type and quantity of cocaine

referred to in PSR ¶¶ 32 and 41(j), if it chooses to use such

quantity in its sentencing determination.

Cobb contends that Jimmy Bragewitz told three different

stories on three different occasions about when he first met Cobb

and the duration of the period of his association with Cobb. 

Cobb testified under oath at his sentencing hearing that he met

Bragewitz approximately two months before his arrest in early

October. Cobb denied that Bragewitz went with him to Temple once

a week from May to October 1996. He denied that Bragewitz ever

went with him to Temple to buy “dope.” Cobb argues that this

difference in the period of his association with Bragewitz is

crucial because Bragewitz claimed to have accompanied Cobb to
No. 98-50428

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1 We note that the PSR explicitly states that the drug

quantity is calculated as a certain number of grams per week for

twenty-two weeks during the period from May to October 1996. 

Counting the first week of May 1996 as the first of the twentytwo weeks, the last week included in the PSR’s calculation would

be the last week of September or the first week of October 1996. 

Cobb is therefore incorrect about this point. As we discuss

below, however, Cobb’s sentence must be vacated for other reasons

related to Bragewitz’s testimony.

Temple, Texas, “at least once a week” from May to October 1996 to

pick up crack, and that based on this testimony, the probation

officer found that Cobb was responsible for 148.83 grams of

crack. Cobb notes that the probation officer also credited

Bragewitz’ statement to Medford on May 28, 1997, that Cobb and

Marshall would go to Temple alone, from May to October 1996, and

purchase quarter-ounce cookies of crack at least three times a

week, from which statement the probation officer calculated that

Cobb was responsible for 446.51 grams of crack cocaine.

Cobb argues that the calculation of the above drug

quantities is erroneous because the probation officer used the

entire month of October 1996 when Cobb was arrested on October

7.1 Cobb argues that, second, it was erroneous to base the drug

amount on the period of May to October because Bragewitz

testified that he was unsure of the period in question and that

the district court should have erred on the side of caution in

estimating the drug quantity. Third, Cobb argues that the

district court did not make a factual finding regarding why he

found Bragewitz’ statements to Medford more credible than the

testimony at the sentencing hearing. Additionally, Cobb argues

that Bragewitz’ testimony is unreliable and that Bragewitz is at

best confused and at worst lying. Cobb notes that Bragewitz
No. 98-50428

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admitted that he was a methamphetamine addict, and he argues that

his testimony should be received with caution. Lastly, Cobb

argues that Bragewitz’ testimony is unreliable because of his

cooperation with authorities and lenient treatment in return. 

He concludes that Bragewitz’ information cannot be considered

reasonably reliable.

The sentencing court “shall resolve disputed sentencing

factors at a sentencing hearing in accordance with Rule 32(c)(1),

Fed. R. Crim. P.” § 6A1.3(b). Rule 32(c)(1) provides that the

district court “must rule on any unresolved objections to the

presentence report” and for “each matter controverted, the court

must make either a finding on the allegation or a determination

that no finding is necessary.” A district court has wide

discretion in determining which evidence to consider and which

testimony to credit. United States v. Edwards, 65 F.3d 430, 432

(5th Cir. 1995).

The district court’s only finding regarding the drug

quantity was that “the amount of `crack’ cocaine set forth in the

Pre-Sentence Report is a conservative estimate.” Cobb makes

several arguments regarding why Bragewitz’ testimony was

unreliable. We do not consider Bragewitz’ testimony to be

unreliable per se. However, given Bragewitz’ conflicting

statements, his equivocation about the number of months he had

been associated with Cobb, and Cobb’s contradictory testimony,

the district court was required to make findings regarding the

indicia of reliability of Bragewitz’ statements to Medford and to

resolve the disputed sentencing factor presented by the factual
No. 98-50428

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disputes between Bragewitz’ statement and Cobb’s testimony under

oath. For this reason also, Cobb’s sentence is VACATED and

REMANDED for additional factual findings.

Cobb argues that the district court used an unsubstantiated

amount of crack based on information provided by Taylor. Cobb

notes that Taylor allegedly stated that Cobb purchased two to

three cookies of crack in Houston in the summer of 1996. Cobb

points out that the PSR stated, without substantiation, that the

cookies weighed at least two ounces and used this information to

determine that Cobb possessed 56.70 grams of crack cocaine. Cobb

argues that the record does not contain any proof of how much

these cookies weighed and that the PSR engaged in speculation

that each cookie weighed one ounce. Cobb also adopts the same

arguments he made in relation to Bragewitz regarding the

unreliability of Taylor’s statements due to Taylor’s use of drugs

and his cooperation with the Government.

There is some discrepancy between the statement reported in

the PSR and Taylor’s testimony at trial. At trial, Taylor

referred to a “couple of cookies,” and the PSR reports that

Taylor referred to two to three ounces. Cobb testified at

sentencing that the most he ever bought was “five-gram quarters”

at a time. The district court made no specific finding regarding

the weight of the cookies purchased in Houston. If the “couple

of cookies” weighed only a quarter ounce each, then the amount of

crack referred to in the PSR should have been only one-half

ounce. On remand, the district court should clarify this amount

by making a specific finding.
No. 98-50428

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2 We note, for whatever relevance it may have on remand,

that although the PSR apparently relies on Agent Medford’s report

of Clorinda Phillips’s debriefing for its conclusion that Cobb

received a one-ounce cookie of crack every Friday from May

through August 1996, Medford’s report does not quote Phillips as

saying that such a transaction occurred weekly from May through

August 1996, only that Cobb usually received the cookie on

Fridays and that his source had been bringing crack cocaine to

Gatesville for the past three years.

Cobb argues that the district court erred in adopting the

PSR’s drugs amounts that relied on statements by Clorinda

Phillips. He notes that according to the PSR, Phillips told

Medford that she had witnessed Cobb receive a “one-ounce cookie”

each Friday from May through August, 1996.2 The probation

officer calculated that Cobb was thus responsible for 20 ounces

(567 grams) of crack. Cobb notes that Phillips testified at the

sentencing hearing that she had never made such a statement. 

Cobb contends that the district court did not sufficiently

explain why it believed her former statement rather than her

testimony.

Phillips testified at the sentencing hearing that she did

not know how much crack Cobb sold, and she denied her statement

to Medford. The district court apparently credited her earlier

statement to Medford; however, the district court did not make a

specific finding regarding the indicia of reliability of her

prior statement or a finding resolving the factual dispute

between her prior statement and her hearing testimony. On

remand, the district court should clarify this amount by making a

specific finding.

Cobb argues that the district court erred in relying on

Medford’s ballpark estimate for the amount of crack sold on “the
No. 98-50428

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Hill” attributable to Cobb. He argues that Medford’s testimony

did not have sufficient reliability to support its probable

accuracy. The district court’s single finding on drug quantity,

that the amount of crack set forth in the PSR was a conservative

estimate, appears to be based in large part, if not entirely, on

Medford’s agreement with the district court’s statement that Cobb

would have been accountable for substantially more than the 2.34

kilograms in the PSR. The district court discounted any problems

or discrepancies with the specific amounts of crack listed in the

PSR in the subsections to PSR ¶ 41. The district court relied on

this general estimate in spite of Medford’s testimony that all he

could really base an amount on was the information he received in

the debriefings as outlined to probation. The district court did

not attempt to determine what amount of crack would equal onequarter or one-half pound a week or to determine how many weeks

were involved. The district court assumed that it would be more

than the 2.34 kilograms outlined in the PSR. The district court

clearly erred in relying on Medford’s vague estimates rather than

making findings of fact on the specific amounts listed in the

PSR. For all the reasons discussed above, Cobb’s sentence is

VACATED and this case is REMANDED for resentencing.

Cobb argues that the district court erred in imposing a fine

of $9,000. Cobb concedes that he made no objection to the

imposition of the fine and that plain error applies. See

Rodriguez, 15 F.3d at 414. The district court did specifically

find that Cobb had an inability to pay, giving that reason for

imposing a fine below the guideline range. Thus, there is no
No. 98-50428

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reason to remand for a specific finding. Despite that finding,

the district court is not precluded from imposing a fine. United

States v. Hodges, 110 F.3d 250, 251-52 (5th Cir. 1997). The

district court did not commit plain error in imposing the fine.

SENTENCE VACATED; REMANDED FOR RESENTENCING IN ACCORDANCE

WITH THIS OPINION.