dissenting.
The issue in this case is whether the proof presented in support of the amount of cocaine used to calculate the base offense level satisfied a preponderance of the evidence standard. United States v. Walton, 908 F.2d 1289, 1302 (6th Cir.1990). The district court’s determination is a finding of fact which must be accepted unless it is found to be clearly erroneous. Id. at 1300-01. I believe that the district court incorrectly computed the base offense level by relying on unreliable information. I would vacate the sentence and remand so that the base offense level could be redetermined. As a result, I respectfully dissent.
In United States v. Walton, 908 F.2d at 1303, this court reversed and remanded for resentencing after determining that the district court incorrectly calculated the amount of cocaine involved. The district court found that defendants were accountable for 455 grams of cocaine based on (1) evidence that defendants sold 3.5 grams of cocaine per week in April 1986, (2) the fact that a large amount of cocaine processing paraphernalia was found in defendants’ basement, and (3) an assumption that defendants sold cocaine for over two years at a rate of 3.5 grams per week. This court found that there was no direct or circumstantial evidence to support the district court’s assumption that defendants sold quantities of cocaine for a two-year period. We stated that:
We believe that the guidelines do not permit the District Court to hold a defendant responsible for a specific quantity of drugs unless the court can conclude the defendant is more likely than not actually responsible for a quantity greater than or equal to the quantity for which the defendant is being held responsible. If the exact amount cannot be determined, an estimate will suffice, but here also a preponderance of the evidence must support the estimate. Thus when choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution.
Id. at 1302.
This court also recently reversed a district court which improperly calculated the quantity of drugs used in determining an offense level because the estimate was based only on a “guess” by the defendant’s girlfriend. United States v. Robison, 904 F.2d 365, 371-72 (6th Cir.1990). The girlfriend in Robison was a heavy drug user with a faulty memory who testified that she had “no factual basis” for estimating a quantity of drugs. Id. at 372. This court concluded that her “testimony was not sufficiently accurate to permit the district court to aggregate a specific quantity of cocaine in determining the base offense level.” Id. at 371. Because the preponderance of the evidence did not establish the amount arrived at, this court declared the district court’s finding to be clearly erroneous.
In the instant case, the district court credited Davis as responsible for 6,394.8 grams of cocaine, although the government initially documented only 3,336.4 grams. The higher figure is based on Davis’ June *118914 statement to the probation officer. In assessing the reliability of Davis’ June 14 statement, I believe that Davis’ ability to speak truthfully is relevant. Dr. Spalding and Dr. Cheatham both testified that because of his mental problems, Davis was prone to grandiosity and exaggeration. The probation officer admitted to “some inconsistencies” even during the June 14 interview. J. App. at 67. The district court stated that “the bulk of [information] provided by the Defendant was not truthful, was not complete, and was without reliability[.]’’ If Davis’ veracity is to be impugned, it is not clear why his June 14 statement should be accepted as true, especially when there is no other evidence to support it.
In my judgment, Davis’ June 14 statement to the probation officer does not, in view of Walton and Robison, establish by a preponderance of the evidence the amount of cocaine the district court held Davis accountable for. Davis does not contest the accuracy of the 3,446.4 gram figure, which would have set his base offense level at 28. Use of the higher figure, in my view, infringes Davis’ due process rights because “[allowing a court to find a defendant responsible for the maximum quantity of drugs that can plausibly be found could result in defendants receiving excessive sentences based on a finding of quantity that is more likely than not excessive. Such a result would violate a defendant’s due process rights.” Walton, 908 F.2d at 1302. Because I believe that the district court did not establish the reliability of the higher figure, I respectfully dissent.