UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4802

EDWARD ROBINSON, a/k/a Eddy

Eyeball,

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-98-12)

Submitted: July 22, 1999

Decided: August 3, 1999

Before ERVIN, HAMILTON, and TRAXLER,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Martin P. Sheehan, SHEEHAN & NUGENT, Wheeling, West Virginia, for Appellant. David E. Godwin, United States Attorney, Sam

G. Nazzaro, Assistant United States Attorney, Lisa Grimes Johnston,

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Unpublished opinions are not binding precedent in this circuit.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:

Edward Robinson pled guilty to distributing crack cocaine within

1000 feet of a school (Count Five). See 21 U.S.C. §§ 841(a), 860

(1994). He appeals his 168-month sentence, contending that the district court clearly erred in determining the amount of drugs for which

he was accountable, see U.S. Sentencing Guidelines Manual § 2D1.2

(1997), and in finding that he had not accepted responsibility. See

USSG § 3E1.1. He also argues that the district court misinterpreted

the guidelines by finding that the term "instant offense" includes relevant conduct, and therefore adding two criminal history points under

USSG § 4A1.1(e). We affirm.

First, the district court did not clearly err in determining the amount

of drugs. See United States v. McDonald, 61 F.3d 248, 255 (4th Cir.

1995). The base offense level calculated in the presentence report

included half an ounce of crack that Joe Burt testified he bought from

Robinson and thirty-five grams of crack that Edgar Phillips testified

he sold to Robinson. Robinson challenged the reliability of both witnesses, alleging that 1992 police reports from Pittsburgh, Pennsylvania, showed that Phillips exaggerated the amount of crack he said he

sold to undercover officers in a separate case, and that Burt had

falsely reported that he had not moved while on pretrial release in

1997, which resulted in revocation of his bond. The district court concluded that Robinson had not shown with sufficient particularity that

the grand jury testimony of either witness was too unreliable to be

considered in his case. We agree. Relevant hearsay evidence may be

considered at sentencing if it "has sufficient indicia of reliability to

support its probable accuracy." USSG § 6A1.3(a), p.s. The test is

whether the information has "some minimal indicium of reliability

beyond mere allegation." United States v. Hicks, 948 F.2d 877, 883

(4th Cir. 1991) (internal quotation and citation omitted). Here, the

evidence in question was given under oath in a judicial proceeding,

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both Phillips and Burt had previously appeared before the district

court and the court thus was able to gauge their credibility to some

extent, and the evidence they gave was consistent with grand jury testimony from other witnesses.

Second, the district court did not clearly err in denying Robinson

an adjustment for acceptance of responsibility when he violated the

conditions of his bond by leaving West Virginia without permission

and subsequently was arrested in Cleveland, Ohio, and charged with

drug offenses involving crack and marijuana. See United States v.

Castner, 50 F.3d 1267, 1279 (4th Cir. 1995) (standard of review);

USSG § 3E1.1, comment. (n.1(b) (district court may consider whether

defendant has voluntarily terminated his criminal conduct or associations).

Finally, the district court did not err in determining Robinson's

criminal history. We review the district court's interpretation of

guideline terms de novo. See United States v. Jones, 31 F.3d 1304,

1315 (4th Cir. 1994). Under USSG § 4A1.1(e), two criminal history

points are added if the instant offense was committed within two

years of the defendant's release from imprisonment on a sentence

counted under subsection (a) or (b). Application Note 5 to USSG

§ 4A1.1 states that the two points should be"added if the defendant

committed any part of the instant offense (i.e. , any relevant conduct)

less than two years following release from confinement."

Robinson was released from a six-month jail sentence for resisting

arrest and battery on January 12, 1994. In May 1995, he sold crack

to an informant making a controlled drug purchase. Additional controlled purchases were made in 1996. The offense of conviction

occurred in January 1998. Two points were properly added because

the six-month jail sentence was counted under subsection (b) and

occurred less than two years before Robinson's May 1995 sale of

crack. Robinson argues that the term "instant offense" should not

include relevant conduct because it violates the plain meaning of the

guideline. See Stinson v. United States, 508 U.S. 36, 42-45 (1993)

(guideline commentary is binding unless it violates the Constitution,

a federal statute, or plain meaning of guideline). We find that Application Note 5 does not violate the plain meaning of the guideline and

that the district court did not err in adding the two points.

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We therefore affirm the sentence. 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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