UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4972

TERRY ANTONIO LEATH,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

James A. Beaty, Jr., District Judge.

(CR-97-78)

Submitted: July 21, 1998

Decided: September 2, 1998

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,

Timika Shafeek, Assistant United States Attorney, Tommy Simpson,

Third-Year Law Student, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Terry Antonio Leath was convicted by a jury of conspiracy to possess cocaine base ("crack") with intent to distribute, see 21 U.S.C.

§ 846 (1994), and received a sentence of 292 months imprisonment.

He appeals his sentence, contending that the district court clearly

erred in determining that he was accountable for at least 1.5 kilograms

of crack. We affirm.

During the investigation leading to Leath's arrest, his supplier,

Jason Bass, was arrested at the train station in Greensboro, North Carolina, with over 400 grams of crack (about 15 ounces). Of that

amount, 7.8 ounces was intended for Leath. Bass cooperated with

authorities and disclosed that he had mailed an Express Mail package

which was seized a year earlier. The 7.3 grams of crack contained in

the package had also been intended for Leath.

In pretrial interviews and in his trial testimony, Bass estimated that

he had supplied Leath with more than two kilograms of crack

between 1993 and 1996. The specific amounts Bass testified to at trial

were somewhat greater than the amounts he reported in pretrial interviews. Because of this discrepancy, and because Bass smoked marijuana and another government witness, Henry Lea, used crack, Leath

argued at sentencing that their evidence was unreliable and that only

the seized amounts should be considered for sentencing purposes.

However, the district court determined that the government had

proved that Leath was accountable for at least 1.5 kilograms of crack,

resulting in a base offense level of 38. Leath argues on appeal that the

district court failed to consider the unreliability of the evidence provided by Bass and Lea.

The government has the burden of proving the quantity of drugs

attributable to the defendant by a preponderance of the evidence. See

United States v. McDonald, 61 F.3d 248, 255 (4th Cir. 1995). Where

the drug amount seized does not reflect the scale of the offense, the

district court "shall approximate the quantity of the controlled substance." USSG § 2D1.1, comment. (n.12). Nevertheless, in resolving

disputed matters at sentencing, the district court may consider only

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evidence which has sufficient indicia of reliability to support its probable accuracy. USSG § 6A1.3(a), p.s. Under United States v. Hicks,

948 F.2d 877, 883 (4th Cir. 1991), the factual evidence relied on must

"`have some minimal indicium of reliability beyond mere allegation.'" (citations omitted).

Here, the district court made an implicit finding that Bass and Lea

provided credible evidence which established Leath's involvement

with at least 1.5 kilograms of crack. We review the court's determination for clear error. See McDonald, 61 F.3d at 255. Bass testified that

he delivered well over 1.5 kilograms of crack to Leath. All but about

three ounces of the 1.5 kilograms of crack was corroborated by seized

amounts, the known weight of the two unseized Express Mail packages Bass mailed to Lea for delivery to Leath, and Leath's telephone

records. On this record, we cannot say that the court clearly erred in

finding that 1.5 kilograms of crack was received by Leath from Bass

over the duration of the conspiracy.

The sentence is therefore affirmed. Leath's motion to reopen the

briefing schedule is denied. 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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