*1 fail ambiguous policies because the account, America, must hold the party name who UNITED STATES reasonably conclude that and one could Plaintiff-Appellee, Apache or Alinta could “hold the either ” trigger ‘account of the Insured’ cover only thing at 739. The we can age. Id. ROBINSON, Larue Steven competing conclude from this recitation of Defendant-Appellant. interpretations is that the lan

reasonable guage policies ambiguous. of the is See No. 12-4639. (“[N]o Atalla, writing 976 F.2d at 192 is unambiguous susceptible if of two reason Appeals, United States Court of interpretations[.]”) (quotation marks able Fourth Circuit. omitted). Argued: Oct. 2013. would, therefore, analyze

I the extrinsic evidence submitted Decided: 2014. Feb. Although parties. the record this case 2,200 nearly pages long, agree is I with the that none of

district court’s conclusion

extrinsic evidence is admissible because provides parties’

none of it evidence of the at time En- provisions

intent

dorsement 8 were drafted. Millenni- See

um, at F.Supp.2d 739.

Because none extrinsic evidence is admissible, nothing

relevant or there is consider, jury responsi- and it is “the

bility interpret of the court to written in- Wesolowski,

struments.” 350 N.Y.S.2d (internal

895, 305 N.E.2d at 909 citation

omitted). must, therefore, rely We interpretation

well-settled rules of contract

to decide the case.

Here, court applied the district the doc- 'proferentem

trine of contra to construe the

ambiguous policies favor of Millennium Insurers, against it granted partial summary

Millennium’s motion for

judgment declaratory judgment as to its Millennium,

claim. F.Supp.2d court,

I agree with the district and I

would, therefore, affirm. For this and the above, I

other reasons discussed must re-

spectfully dissent. *2 Carolina,

Raleigh, North Appellee. Walker, BRIEF: ON Thomas G. United Attorney, States P. May-Parker, Jennifer Attorney, Assistant United States Office Attorney, Raleigh, *3 Carolina, North for Appellee. NIEMEYER, MOTZ, DIAZ, Before and Judges. Circuit by Affirmed published opinion. Judge opinion, MOTZ wrote the which Judge joined. Judge NIEMEYER DIAZ wrote a separate opinion dissenting in part. MOTZ, DIANA GRIBBON Circuit Judge: challenges

Steven Robinson his 140- distribution, month sentence for cocaine contending that the district court erred in assigning drug quantity his and in calculat- ing history. his criminal For the reasons follow, affirm. we I.

A. Wilson, In police officers North Carolina, videotaped Robinson and two making others six crack-cocaine sales to a police informant. The Government indict- conspiring count of ed Robinson on one distribute crack cocaine 2002 to aiding abetting one count of the distri- cocaine, bution of crack and six counts of of crack cocaine. distribution guilty to of these counts in pled three February sought but remaining on the five His trial counts. co-conspirators pled guilty two the week light trial. before Robinson’s scheduled Robinson himself Neyhart, guilty pleas, ARGUED: Seth Allen Stark of these PLLC, Hill, Group, Chapel pled guilty remaining Law North to the five counts on Carolina, day his trial Appellant. Rog- April Joshua L. which ers, Attorney, Office of the United States had been scheduled. if the defendant an enhancement vides for

B. while on the crime of conviction committed report investigation presentenee A reasoned probation officer probation. (PSR) calcu- officer by probation drafted one-day given a had been that Robinson light offense level base lated Robinson’s sentence of because crack cocaine attribut- quantity of conviction, this term marijuana counts to which Although him. able drug conspira- ongoing coincided with only that pled guilty specify history points four criminal cy. These or more” grams “50 crime involved category of criminal produced a cocaine, Sentencing Guidelines crack III. drug all sales to consider require judges conspir- during by the defendant history category of a criminal Based not acy including sales covered 31, the recom- — III and an offense level of *4 § U.S.S.G. 2D1.1 of conviction. the counts to- range in the PSR Guidelines mended cmt.5. imprisonment. months taled 135-168 case, probation the officer

In Robinson’s that, 2002 and

concluded between C. crack cocaine than sold far more Robinson objected both sentencing, At Robinson police by the six sales the implicated was and the drug quantity to the calculation of arriving at this con- tape. on In captured history. calculation of criminal clusion, on officer relied probation the by Melvin police to the statements made i. Battle, purchased have claimed to who challenge drug quanti- to his Robinson’s regularly drugs from Robinson the reliance on the ty PSR’s rested Bat- Taking the low end of through 2008. Battle. Giv- by Melvin provided statement estimates, esti- probation the officer tle’s the court the en address Battle kilo- that Robinson sold 1.43 mated that, pointed out before directly, Robinson estimate, crack This grams of cocaine. to Rob- attributing kilograms 1.43 of crack quantity covered drug with combined the inson, had in an earlier interview Battle conviction, to a translated by the counts of kilograms him Robinson sold stated that kilograms 1.47 quantity calculation of drug argued drug. of the Robinson also cocaine, produced a base of crack which ciga- PCP bought Battle’s claim to have From this base offense offense level of 34. in Robinson North Carolina rettes from level, probation officer recommended Rob- to 2008 was false because from 2005 respon- acceptance reduction for 3-level culinary in school in enrolled inson was in a of- sibility, recommended resulting period. during most of that Con- Florida fense level of 31. Battle, drugs to tending that he never sold a calculation of The also contained PSR “blatant- Robinson insisted Battle The history category. Robinson’s criminal curry prosecutors. favor ly lying” assigned one officer Robinson probation conceded response, the Government based on a 2003 history point criminal render his and that revised statement marijuana possession, Battle conviction for signifi- drug-quantity estimate a 2009 his second point conviction another based But the Gov- cantly than his carrying a con- lower first. resisting for arrest and that “it not unusual argued is add- ernment weapon. probation cealed officer 4Al.l(d) differently” when to estimate Section Defendants points ed two more under occasions. Guidelines, separate on two pro- interviewed Sentencing which Government, to the Battle’s sec- The Government According explained further merely provided ond statement more drug quantity basis of the calculation set than conservative and reliable estimate in why forth the PSR and this calculation respect cigarettes to the PCP first. With higher would have been if the PSR had bought Battle claimed to have when Robin- included statements of other witnesses. Florida, em- son was in the Government court, Robinson then addressed the con- phasized figure these sales did not tending that an everyday drug he “wasn’t drug-quantity assignment. into the PSR any dealer” and that saying witnesses contrary lying. were After the court further

The Government defended reviewed the counts to which Robinson drug-quantity by explaining calculation that, pled guilty, it concluded with respect that, notwithstanding the asserted defi- to the relevant conduct informing statement, in Battle’s three other ciencies calculation, quantity “really prepared witnesses were to state that Rob- gotten way a break ha[d] [because of] the drugs during conspira- inson sold them cy Although timeframe. these statements the Probation Office calculated the amount way” did not “make their to the of crack cocaine.” The court stated that it office, the Government maintained that enough “had heard to conclude that “in put these accounts would calculations credible and [PSR were] Mr. position least the he’s with Battle’s reliable,” they could be used *5 statement, position.” if not in a worse level, calculating Robinson’s offense it but again willing reiterated that it was to Upon parties’ argu- consideration of the “open up” all if back Robinson were so ments, presented the district court Robin- inclined. Robinson did not take the court son with a choice: up on its offer. ways. We’ll do it one of two We’re going go today to forward with what’s ii. now, here and and I’ll make the deci- prepon- sions that I need to make a objected Robinson also to the PSR’s as- I’ll derance of the evidence. Or unwind signment of two criminal points thing. I’ll pro- whole start PSR day the basis of his sentence of one proba- If cess all over. there are statements marijuana tion for the 2003 conviction. He didn’t, reason, that for whatever make argued spent day that he had the entire Office, again. to the Probation start [I’ll] Maryland en route from the And, happens, happens. whatever And courthouse, and not have so could sold then, you’ll object.... a have chance to drugs day. rejected on that The court I only way That’s the see—those are the adjust- imposed two-point only two choices. ment, concluding Sentencing responded by reiterating Robinson ad- required Guidelines this result. This But, Battle’s statement was not credible. justment guidelines increased Robinson’s again after the court asked him whether range from 121-151 months to 135-168 prefer proceed he would to on the basis of to months. The court sentenced Robinson delay sentencing Battle’s statement or imprisonment 140 months sentence —a ample three to parties months allow the ranges. court noted was “well within” both information, time to obtain more Robinson appeals, asserting Robinson the dis- responded go that “I would rather ahead now, procedurally do it Your in calculat- Honor.” trict court erred reliability of the credibility and history.1 ing the and criminal drag quantity ing his the PSR relied. The testimony on which II. objection by countered this Government available stating that other witnesses were drag quantity, to respect With (or drag- augment) the to corroborate the district court Robinson contends district court calculation. The quantity Bat by relying on plain error committed unilaterally grant chosen to could have Robinson, how in the PSR. tle’s statement Johnson, continuance. See ever, When he this contention. has waived (4th Cir.1984). But, per- sentencing to choice made the conscious led to doing might so have haps because of the information proceed on the basis sentence, the receiving higher Robinson PSR, including Battle’s in the contained with a provided court instead statement, to waived his (1) sentencing to postponement choice: reliance on that the district court’s appeal new evidence parties produce allow the information. (2) or drag quantity, proper as to the A is the intentional relin “waiver evi- sentencing based on the proceeding of a known quishment or abandonment before the court. dence — U.S. —, Milyard, right.” v.Wood 1826, 1835, 182 L.Ed.2d 733 132 S.Ct. choice, Robin- presented with this When omitted). (2012) marks Waiver (quotation stated that he “would unequivocally son “forfeiture,” distinguished from is to be Further- go rather ahead and do now.” timely “the failure to make the which is more, position to this when the he adhered Ryan, right.” of a Kontrick v. assertion gave him an district court 443, 458, n. 124 S.Ct. 540 U.S. mind. Robinson con- change his (2004). may review a Courts L.Ed.2d sciously objection abandoned error. United plain forfeited claim for calculation in the PSR and drag quantity Olano, 507 U.S. States v. *6 opted instead to (1993).2 1770, L.Ed.2d 508 S.Ct. 123 in This on the information the PSR. based waived, a claim is it is not reviewable when was waiver. Rath plain even for error. Id. appeal, er, that there was a valid waiver means the waiver was valid is Whether Keeter, v. “no error at all.” United States de novo. a matter of law that we review (7th Cir.1997). 297, The case 300 130 F.3d Marin, 961 F.2d 496 States United waiver, not forfeiture. at hand is one of (4th Cir.1992). may defendants Criminal issue, an and then party “A who identifies statutory rights— constitutional waive or it, has waived the is explicitly withdraws challenge a including particu Rodriguez, States v. sue.” United waiver is ruling appeal lar the—if Cir.2002). (1st 435, 437 F.3d voluntary. Examination knowing and Id. deter

Here, totality of the circumstances objection an Robinson raised knowing a waiver is and by challeng- calculation mines whether drug-quantity his review, challenging plain that his 2. Under error 1. Robinson’s alternative (1) service, issues, party must show that there was "error” military and mental health (2) (3) "plain”, the error "af the error was his within-Guidelines work render (4) rights,” the error substantial and fect[s] substantively unreasonable is merit- sentence fairness, integrity "seriously or affect[s] less. judicial proceedings.” public reputation of (Olano, S.Ct. 507 U.S. at Farrell, voluntary. States v. proceed United Robinson’s decision to on the (4th Cir.2005). existing basis of the PSR is akin to a proceed defendant’s decision to with a case, In record that the reveals trial jury bench rather than a quin- trial — Robinson, defendant, exactly knew what he tessentially an enforceable waiver. See court relinquishing. was The district ex- Boynes, United States v. 515 F.3d that, repeatedly explained by and plicitly (4th Cir.2008). Having choice at choosing sentencing, with Rob- proceed sentencing, Robinson cannot now contend that agreeing drug quantity inson was his that the district court erred honoring would be calculated on the basis of the argu- choice. He has waived the PSR, relied on which Battle’s statement. ment.4 occasions, separate pre- On three the court We note that this conclusion accords post- sented with the choice of holdings with the of the Supreme Court poning sentencing supplement the rec- and our sister in circuits similar circum proceeding ord or with sentencing based Wood, stances. See 132 S.Ct. at 1835 on the information the PSR. Robinson (holding that the State waived a defense consistently preference adhered to his where, expressing “after its clear and ac sentencing without supple- defense, curate of understanding” menting the record. “deliberately State steered the district it); Nothing suggests away” the record from United States v. Guzman, graduated high Robinson—who had 2n. 2013) school, community college, attended (holding that defendant claim waived culinary attained an degree plea agreement associate that Government breached In- sentencing by arts-—did not understand this choice. withdrawing pro se mo guilty plea deed Robinson does not even contend that tion to withdraw prior to sen tencing); Rodriguez, he did not understand this choice. 311 F.3d at 437 knowing voluntary.3 waiver (holding “consciously his defendant preventing sup- 3. The dissent asserts that "the district court admission new evidence to reliability short, did not make a on the plement the record. the dissent presented Battle’s statements until permit would Robinson to have cake and after choice,” Robinson with his and that Robinson Moreover, approach eat it too. the dissent’s representation on the court’s "reified] would counsel courts to act unilat- evidentiary apply would when standard” choice, erally offering without defendants a proceed. he chose to The dissent thus con- *7 very and would thus undermine the interests cludes that Robinson waived at most "the protect. the dissent aims to 90-day delay.” argu- for a This ment, which Robinson himself has never 4. The Government’s contention that Robin made, First, fails. it fails to consider the son "invited” error the district court entirety. very record in its In same four- thus misses the mark. Robinson did not paragraph sentence in which the court rely ”ask[]” the court to on Battle’s state reliability finding, again its reiterated its complain appeal ment and then that this willingness "open up.” to this all back Given improper. reliance was See United States v. Robinson's extensive on his own Herrera, (4th 75 (including infrequent interrup- behalf his not Rather, initially objecting after to the use of court), surely tions of the district would he statement, expressly Battle’s not have hesitated to withdraw his waiver if any objection Accordingly, to, Moreover, waived to it. he wished but he did not. error,” committing rather than "invited proposed holding permit dissent's would Rob- impeach (by argument) district court committed “no error at all." inson to unsworn statement, Keeter, Battle’s while at the same time 130 F.3d at 300. during acts “that occurred encompasses in the to information objection waived” his of conviction the commission of offense withdrawing, the and then by raising, PSR offense,” in- Keeter, in for that preparation sentencing); [or] objection prior resulting separate in a cluding conduct waived (holding that defendant at 300 F.3d lB1.3(a)(l). § conviction. Id. offer criminal rejecting the court’s objection by conduct include as relevant opt- The Guidelines sentencing hearing and a postpone the defen- of contraband” delay).5 quantities “all without ing instead to Id. during conspiracy. a dant sold (b). lB1.3(a)(l) § cmt.2 III. establishing the defen- In addition Robinson also asserts all relevant light level in calculating in dant’s offense errors court committed two conduct, sepa- must sentencing a court history. his criminal criminal

rately calculate the defendant’s “prior in on his history part based score A. § Id. 4A1.1. The Guidelines sentence[s].” He first contends “prior sen- exclude from the definition marijuana treating in his 2003 court erred con- any resulting sentence tences” sentence” yielding “prior a conviction as that constitutes “relevant conduct” duct conduct” with re than as “relevant rather § 4A1.2 emt.l. current offense. Id. a to his current sentence. Whether spect relevant qualifies if an offense as conduct” under crime constitutes “relevant it can- purposes, for offense-level conduct question we is a factual the Guidelines for crimi- yield prior also a sentence not v. review for clear error. United States nal-history purposes. (4th Cir.2004). Hodge, 354 F.3d finding plausible “is If the district court’s guilty conspiring pled entire the record viewed its light of had from 2002 to 2011. He to sell cocaine simply ty,” we will not reverse because guilty of and sen previously been found decided the fact different “we would have marijuana possession 2003. tenced for Stevenson, ly.” v. marijuana con that the 2003 He contends (4th Cir.2005) (citation quota “relevant and sentence constituted viction omitted). tion marks conspiracy rather conduct” to his yielding “prior a sentence.” He offense lev- than calculating a defendant’s el, objects all therefore to the inclusion must consider court history criminal marijuana sentence in his surrounding the of- “relevant conduct” § conduct score.6 1B1.3. Relevant fense. U.S.S.G. here, which a sen- given of fact” on Although Rob- constitute

5. not determinative rely. n. 3. waiver, tencing can Id. at mistakenly that he inson’s we note Solomon, that United States asserts precise argu- Although did not make this he Cir.2001) establishes that when F.3d 825 court, Robinson did ment before the district disputes drug quantity calcu- defendant score, challenge his and thus criminal PSR, *8 provides the PSR "no lations in the City preserved See Yeev. Escon- his claim. of Ap- evidentiary calculation. basis” for that dido, 503 U.S. 112 S.Ct. pellant's does not so Br. at 13. Solomon ("Once (1992) a federal claim is L.Ed.2d 153 merely probation holds that a hold. Solomon party any properly presented, a can make "standing in a PSR officer's calculation claim; parties support of that (that is, the identification of alone” without arguments they precise are not limited to the kind) any not supporting evidence of "does below.”). clearly by probation. § The district court did not err while on Id. 4A1.1 cmt.4. marijuana plain sen- treating language provision, Robinson’s Under of this prior tence as a sentence rather than rele- an enhancement must be if imposed any part conduct. The 2003 sentence was for of vant the defendant’s crime coincides marijuana possession, ongoing while the probation. with a term of See United Hernandez, (1st involved the crack cocaine dis- conspiracy States v. Cir.2008) distinct tribution—suggesting (affirming two crimes. a two-point adjust Moreover, the 2003 sentence was for sim- ment where the defendant was sentenced ple possession rather than distribution— probation midway a through heroin- suggesting marijuana per- that the was for delivery conspiracy even though he never played sonal use and no role in a drug- actually during proba delivered heroin term). dealing fact that an conspiracy. The unre- tion If a sentencing court con lated drug adjustment conviction and sentence occur that a two-point cludes is too during drug conspiracy given the timeframe of harsh the minor nature of the of automatically giving does not convert them into fense to probation, proper rise conspiracy. relevant conduct of the See apply course is to the enhancement and (“A § U.S.S.G. 4A1.2 cmt.l sentence im- depart then downward. United States v. Kimberlin, posed after the defendant’s commence- 18 F.3d 1160-61 offense, prior ment of the instant but offense, prior on the instant is a argues that he was in sentence if it was for conduct other than day transit of his in 2003 part conduct that was the instant of of- and that he could not have sold crack added)). (emphasis The district

fense.” day. cocaine on that assuming even “plausible light court’s is thus of Robinson did not sell during cocaine his 24 entirety” the record viewed in its and is probation, two-point adjust hours of Stevenson, entitled to our deference. proper. plain ment was Given the lan F.3d at 542. Guidelines, guage peri a short even probation imposed during ongoing od of B. conspiracy triggers an enhancement under Robinson also contends 4Al.l(d). § Robinson’s “instant offense” adding points district erred two drug-dealing conspiracy to his criminal score because he spanned from 2002 to 2011. Because participated drug conspiracy in the while day pro timeframe included Robinson’s probation. review novo a trial We de prop bation the enhancement was legal court’s interpretation of the Guide er. note further We Wessells, lines. United States v. court, conscious of the minor nature of the (4th Cir.1991). 165, 168 offense, marijuana imposed a sentence that Sentencing require Guidelines was “well within” both the Guidelines two-point upward adjustment “if the de range including range the Guidelines fendant committed the instant offense excluding two-point adjustment. any justice sentence, while under criminal

including probation parole.” [or] U.S.S.G. IV. 4Al.l(d). § An application note to this reasons, foregoing judgment For the provision adjust that a two-point clarifies of the district court is ment is if warranted the defendant com “any mitted part the instant offense” AFFIRMED. *9 way that I see—those only That’s the dissenting part:

DIAZ, Judge, Circuit only two choices. are the that Robin- my colleagues agree I with added). After (emphasis 131-32 J.A. with his sen- proceed freely chose to son concern for the intimated his Robinson part we hearing. because tencing resources, presented was the choice court’s what, that choice ways precisely, as to information “I’ll all of the again: consider Part entailed, I dissent respectfully to to me present side wishes that either majority opinion. II the of now, and I’ll take the or we’ll start over all days.” in 90 J.A. 133. up case I. “go chose to It true that Robinson is that believes majority apparently The My it now.” J.A. 133. ahead and do encompassed his “waiver” Robinson’s district court colleagues say “[t]he sufficiency of the evidence challenge the to that, by explained explicitly repeatedly and for which he drug weight the supporting sentencing, Rob- choosing to with agree I cannot with held accountable. was drug quantity agreeing that his inson was overly reading. broad basis of the be on the would calculated court, Robinson ob the district Before PSR, Battle’s statement.” which relied on drug weight to the jected vigorously PSR’s only part this is of Maj. Op. at 299. But calculation, on Bat focusing particularly “explicit- court also story. The district 119, 121, 123- credibility. See J.A. tle’s ... the court ly explained” would 135-36, 141-43, 152. After the it and apply the evidence before consider Battle’s about expressed concern court In- evidentiary burden. appropriate statements, explained that government deed, court did not make the district witnesses who it could call additional Battle’s state- reliability on the of drug weight. prove higher an even would presented until Robinson ments after Battle nor those additional But neither 131-32, Compare his choice. J.A. testify that available to were witnesses 143-44. with J.A. court Robinson with day. presented The gave court quite To be clear: district options1 : two proceeding a choice of with the ways. do it one of two We’re We’ll evidentiary standard or start- appropriate today with what’s going go forward process Robinson continued ing the over. now, I’ll make the deci- here and and credibility and object to Battle’s noted by prepon- I need make sions keep causing that he did not “want I’ll unwind Or derance evidence. money.” more [sic] Court time J.A. pro- I’ll the PSR thing. start the whole the two The district reiterated all If there are statements over. cess “go elected to options. And Robinson reason, make it didn’t for whatever J.A. 133. ahead and do now.” Office, again. start to the Probation Later, proceeded after court had And, happens. And happens, whatever fur- hearing and heard then, object. with the you’ll have a chance cal- know, drug weight I’ll, months ther about you then three And culation, satisfied court seemed time, see what the you. see And we’ll like, enough. In the I’ll that it had heard midst Report looks Pre-Sentence stated, discourse, the court fairly lengthy I need to make. make the decisions that to address Robinson speaking for district court continued point, 1. At himself, hearing. directly through for the counsel. The remainder rather than

303 all, anything to want to this all you’re open inclined was the for a “[I]f I up, open up. I will it all back 90-day delay. back enough I to know that think have heard calculations in the are credible [PSR] II. rehable, may rely I and that on those determining

in the advice of the Guide- Because Robinson did not waive his ob- lines.” 148^4. The court then went J.A. jection to the sufficiency evidence, of the paragraphs, assigning on for two more the district court duty-bound remained moving Robinson’s base offense level and apply appropriate standard. “[T]he mitigating on to circumstances. government proving bears the burden of majority The that opines pre- “[w]hen by a preponderance of the evidence that choice, unequiv- sented with [his] quantity drugs for which a defendant ocally proceed. Maj. stated” his desire to should be held accountable at sentenc- it, Op. at As I “un- 298. understand Milam, United v. ...” States ing. 443 F.3d statement,” equivocal rather than Robin- (4th Cir.2006). 382, paltry The evi- in response son’s later silence to a non- government dence the offered cannot suf- question, majority is what the believes to fice. Indeed, majority constitute waiver. sorry Battle’s “evidence” is a mess. explicitly notes that when the district court statement, a 2010 Battle accused Robinson finding reliability, made its base; providing kilograms six of cocaine “would not have hesitated to withdraw his 2012, See J.A. than kilograms. less two Maj. if Op. waiver he wished to.” at 299 n. 124-25, government 176. The Thus, conceded majority 3. the “waiver” the touts the statements “significant- in fact differed precede any findings did on credi- ly,” yet bility. It is difficult to J.A. somehow contends that understand how inconsistent,” scope they of that are “not affirmative “waiver”—a waiv- J.A. 128. Of relying representation greater er on the court’s concern is Battle’s statement apply evidentiary that it would regularly purchased cigarettes stan- he PCP change simply dard —would because Rob- from Robinson in North Carolina between immediately object inson did not to a find- 2005 and 2008. This defies common sense: ing hearing. explains, made much later in the On as the PSR Robinson lived record, I agree cannot that Robinson Florida for much of time. J.A. 181- sufficiency waived his to contest the court excused this dis- finding drug crepancy, noting of the district court’s as to cigarettes that those PCP weight yet that had to occur not weight were included cal- —a proceed.2 when he chose to If he waived culation. yard, -U.S.-, majority

2. The cases on which the relies are 132 S.Ct. Keeter, (2012) inapposite. (finding In United States v. waiver L.Ed.2d 733 where the example, explicitly "deliberately away the defendant chose to state steered” pertinent question); with his current at from the United States v. Guzman, (8th torney; argued appeal he he should 707 F.3d 941 n. Cir. 2013) represented by (finding have unprepared not been waiver where defendant with lawyer. signed See 130 F.3d drew his motion and also a consent today, admitting acceptance purpose unlike the court the Seventh Cir form withdrawal); actually cuit held Keeter to a choice he made. and effect of that (1st Cir.2002) by majority similarly Rodriguez, The other cases cited here, ("[H]e apply forcefully deliberately objec fail to as Robinson con then withdrew his tion.”). credibility. tested Battle's v. Mil- Wood Cf. Such du contradictions. one riddled with sidesteps the real rationale But such a *11 as to findings not “so sacrosanct cigarettes, bious are the PCP by lying about issue: unworthy Mary of be- v. Wash Jiminez himself evade review.” Battle has shown (4th Coll., 369, de- government Cir. the 57 F.3d 379 ington And because lief. probation the Battle or put either clined to stand, the interviewed him

officer who to assess opportunity no had

the court III. Simply put, light.3 credibility any other declares that Robinson majority The presented government the little what should decision and considered cannot drug weight calculation support the consequences. to live with the have of the evi- preponderance constitute upends equities and, the that rationale — dence. indeed, us. It is the case before facts —of other wit- proffer of government’s mulligan, but seeks a not Robinson who to the presented never nesses—witnesses government. the officer, court— much less the probation objected to PSR— the When the lack of evidence. hardly redresses hearing government the before —the function of facts is the “Testifying about was sus- notice that its “evidence” put on v. witness, lawyer.” Kalina not of the the Nor produce Yet it did not Battle. pect. 502, Fletcher, 130, 118 S.Ct. 522 U.S. officer who produce probation it the did (1997); also Int’l 471 see L.Ed.2d it had never even interviewed Battle. And Bay Plywood Chesapeake v. Woodworkers witnesses’ statements the submitted other Cir.1981) (4th 1259, 1273 Corp., 659 F.2d place. officer the first to the (“The are advocate of witness and roles govern- preparation, the Despite its lack inconsistent....”). A pros- fundamentally majority the sees presented ment was —as provides proffer of evidence ecutor’s mere it either it—with a win-win scenario: sentencing hearings the “no evidence job do the a second chance to would have v. Law- ... to review.” United States sentence), (securing longer an even Cir.1995). (11th rence, evidentiary get pass it or would cannot Thus, extraneous statements these case, “In court district standard. its government surmount burden. help the to— obligated did not ensure —as was factual I am determinations mindful carried its burden of that the Government prov- credibility generally remain Lawrence, at 1568. 47 F.3d proof.” is the “[i]t court. But ince of the district and I would vacate remand testify to hear witness the district resen- court instructions on the manner and demeanor observe his on the without tence Robinson record —but in a court places stand district which statements as crediting Battle’s credibility than judge position better grant the weight. Any result would other rely must appellate court that of which very second benefit —a government v. Phillips record.” paper on a cold it does present chance to evidence—that Corp., 602 F.2d Petroleum Crown Cent. See, Arch- Cir.1979) e.g., States v. (4th (Widener, J., not merit. United con- 616, 636 (“The (2d Cir.2011) er, Here, the district dissenting). curring and is that among our sister circuits consensus a cold record— paper court itself relied on burden, proper- which ment commented that Robinson misconstrues 3. The stand, belonged government. to the ly [Battle] "could called have hearing.” 132. But such a state- J.A. government where the knew of generally obligation present

its evidence so, may to do not enter new

failed remand.”);

evidence on Fed.Appx.

Otey, 259

2008) (“[T]he Government had sufficient objection Otey’s

notice of factual to the amount that it should not be afforded

loss *12 present additional second issue.”).

evidence on this majority prefers to hold Robinson bargain

to a he never made. For this

reason, I Part II respectfully dissent from majority opinion. America,

UNITED STATES

Plaintiff-Appellee,

Harvey COX, Defendant-Appellant. L.

No. 13-4066. Appeals,

United States Court of

Fourth Circuit.

Argued: Dec. 2013.

Decided: March