Rehearing Denied Aug. 18, 1992. See U.S. , 113 S.Ct. 10.

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The petition for a writ of certiorari is denied.

Justice WHITE, dissenting.

Petitioner Larry Kinder presents three issues related to his guilty plea and sentence for conspiring to possess methamphetamine with intent to distribute: (1) the burden of proof at the sentencing hearing; (2) district court reliance on conduct made [504 U.S. 946, 947] the basis of counts dismissed pursuant to a plea bargain; and (3) Fifth Amendment self-incrimination implications of the acceptance of responsibility guideline, United States Sentencing Commission, Guidelines Manual (USSG), 3E1.1 (Nov. 1991). The Courts of Appeals have come into conflict on each of these issues, which reflect important and recurring problems in procedures under the Sentencing Guidelines. For the following reasons, I would grant the petition for certiorari as to each of these issues.

Petitioner was arrested following an undercover investigation into major methamphetamine dealers in the area of Waco, Texas. During the operation, petitioner expressed to an undercover officer that he had not wanted to buy a large amount " because he had 17 ounces of methamphetamine on the street and had not collected all of the money from the sale of [it]. " 946 F.2d 362, 365 (CA5 1991). Instead, petitioner, with the assistance of his brother, David,1 purchased approximately one- half pound (269 grams) of methamphetamine. Following arrest, petitioner pleaded guilty to a one-count indictment of conspiring to possess more than 100 grams of methamphetamine with intent to distribute. 21 U.S.C. 846 and 841(a)(1). In exchange for the plea, the government promised not to prosecute him for any additional offenses. At sentencing, however, when calculating the base offense level, the District Court included, upon recommendation by the government, the noncharged 17 ounces (481.93 grams) of methamphetamine of which petitioner had spoken. The District Court also declined to grant petitioner a downward adjustment for acceptance of responsibility, in part because he refused to admit to possession of this additional methamphetamine.

Before the Fifth Circuit, petitioner asserted that, when including the noncharged amounts of methamphetamine as relevant conduct which raised his base offense level from 26 to 30 points, the District Court relied on evidence lacking sufficient indicia of reliability to meet the dictates of due process. See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948); USSG 6A1.3, p.s. (resolution of disputed factors requires information with "sufficient indicia of [504 U.S. 946, 948] reliability to support its probable accuracy"). Petitioner argued that his statement was mere "puffery" that lacked corroboration, emphasizing that he made such statements only to engender confidence in his distribution capabilities.

Like most Courts of Appeals, the Fifth Circuit requires district courts to determine its factual findings at sentencing by a preponderance of the evidence, which findings are reviewed on appeal solely for clear error. United States v. Angulo, 927 F.2d 202, 205 (1991); see also United States v. Blanco, 888 F.2d 907, 909 (CA1 1989); United States v. Guerra, 888 F.2d 247, 250-251 (CA2 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Urrego-Linares, 879 F.2d 1234, 1237-1238 (CA4), cert. denied, 493 U.S. 943, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Carroll, 893 F.2d 1502, 1506 (CA6 1990); United States v. White, 888 F.2d 490, 499 (CA7 1989); United States v. Frederick, 897 F.2d 490, 491-493 (CA10), cert. denied, 498 U.S . ___, 111 S.Ct. 171, 112 L.Ed.2d 135 (1990); United States v. Alston, 895 F.2d 1362, 1372-1373 (CA11 1990). However, at least one Circuit h