UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4451
MIKE CULBERT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-97-296-MU)
Argued: April 1, 2003
Decided: April 24, 2003
Before WIDENER, LUTTIG,* and WILLIAMS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Reita Pauline Pendry, Charlotte, North Carolina, for
Appellant. Douglas Scott Broyles, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee. ON BRIEF: Robert J. Con-
rad, Jr., United States Attorney, Charlotte, North Carolina, for Appel-
lee.
*Judge Luttig was originally assigned to the panel in this case but did
not hear oral argument. The decision is filed by a quorum of the panel
pursuant to 28 U.S.C. § 46(d).
2 UNITED STATES v. CULBERT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mike Culbert appeals his 20-year sentence for conspiracy to pos-
sess with intent to distribute more than 1.5 kilograms of cocaine base,
in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999). Culbert
argues that the district court erred in concluding that, in our prior
remand, United States v. Culbert, 217 F.3d 841, 2000 WL 852812
(4th Cir. June 28, 2000) (per curiam) (unpublished table decision)
(Culbert I), we mandated that it find at least 1.5 kilograms of cocaine
base attributable to Culbert. We agree, vacate Culbert’s sentence, and
remand for resentencing.
In Culbert I, we reversed the district court’s determination at Cul-
bert’s sentencing hearing that only "three to four grams of cocaine
base were attributable to Culbert" because the evidence demonstrated
that amounts "well over 1.5 kilograms" could be attributable to Cul-
bert and the district court failed to explain the basis upon which it
attributed three to four grams to Culbert. Id. at *5-*6. Accordingly,
we vacated Culbert’s sentence and remanded for resentencing. Specif-
ically, we stated that:
the court must be able to cite some evidence presented at
trial that supports its factual conclusion. In this case, as we
have already noted, there simply was no evidence that sup-
ports the sentencing court’s finding of drug quantity. We,
therefore, remand for resentencing. We ask the sentencing
court to recalculate the amount of crack cocaine attributable
to Culbert and to explain, based upon the evidence presented
at trial, how it arrives at this amount.
Id. at *6 (footnotes omitted). The district court interpreted Culbert I
as displacing its role as fact-finder and as directive that it find at least
1.5 kilograms of cocaine base attributable to Culbert. See United
States v. Culbert, No. 97-CR-296-1 (W.D.N.C. Apr. 30, 2002). We
UNITED STATES v. CULBERT 3
review the district court’s interpretation of our mandate de novo.
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
According to the plain language of Culbert I, the district court’s
original finding of only three to four grams of cocaine base attribut-
able to Culbert was clearly erroneous because the district court failed
to explain how it arrived at that amount in light of the evidence in the
record that, as a member of the conspiracy, amounts "well over 1.5
kilograms" could be attributed to Culbert. Culbert, 2000 WL 852812,
at *5. We also noted that the "inconsistencies in the sentencing
court’s statements made at Culbert’s sentencing proceeding and those
made at [his co-conspirators’] sentencing hearings" made an "expla-
nation of how it reached its conclusion" particularly necessary. Id. at
*6 n.7. In our remand for resentencing, we determined only that the
district court clearly erred by arriving at a conclusion that appeared
contrary to the evidence and lacked adequate explanation. We made
no credibility determinations for the district court, and the district
court erred in holding otherwise and not making an independent
determination of the drug quantity attributable to Culbert.
Accordingly, we again vacate Culbert’s sentence and remand for
resentencing. Specifically, we remand this case to the district court to:
(1) recalculate the amount of cocaine base attributable to Culbert; (2)
adequately explain how it arrives at this amount, based upon the evi-
dence and its own credibility determinations; and (3) resentence Cul-
bert based on the amount of cocaine base it finds attributable to
Culbert.* As we noted in Culbert I, "the sentencing court is not
required to believe every witness that testified at trial," id. at *6, but
the court must support its factual conclusions with some evidence and
adequately explain any apparent inconsistencies.
VACATED AND REMANDED
*Because we instruct the district court to reconsider the amount of
cocaine base attributable to Culbert for sentencing purposes, "the district
court may consider the issue de novo, entertaining ‘any relevant evidence
on that issue that it could have heard at the first hearing.’" United States
v. Bell, 5 F.3d 64, 67 (4th Cir. 1993) (quoting United States v. Cornelius,
968 F.2d 703, 705 (8th Cir. 1992)).