     Case: 14-10120       Document: 00512944908        Page: 1    Date Filed: 02/23/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 14-10120
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        February 23, 2015
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

GREGORY PAUL ROBERTS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CR-30


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Gregory     Paul    Roberts     challenges     the    235-month       sentence             of
imprisonment imposed following his guilty plea conviction of conspiring to
possess with intent to distribute over 100 kilograms of a mixture and substance
containing heroin.        We review the district court’s interpretation and
application of the Sentencing Guidelines de novo and its factual findings for
clear error. United States v. Villanueva, 408 F.3d 193, 202-03 & n.9 (5th Cir.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-10120    Document: 00512944908     Page: 2   Date Filed: 02/23/2015


                                 No. 14-10120

2005). The district court’s determination of drug quantity for purposes of
sentencing is a factual finding that will be upheld unless it is not plausible in
light of the entire record. United States v. Alaniz, 726 F.3d 586, 618 (5th Cir.
2013).
      The probation officer held Roberts accountable for 39.11 kilograms of
heroin, which resulted in a base offense level of 38. See U.S.S.G. § 2D1.1(c)(1).
The bulk of this quantity, 39 kilograms, was based on the acquisition and
distribution of heroin by Roberts and a codefendant, Jones, from January 2012
to November 6, 2012. The probation officer reported that Roberts and Jones
pooled their funds to make large heroin purchases.
      Roberts asserts that he did not work with Jones or pool his money with
Jones to purchase heroin from a supplier. He submits that he and Jones had
a buyer-supplier relationship and that they were not partners in drug
trafficking. Consistent with the above contentions, Roberts argues that the
PSR overstates the quantity of heroin for which he is responsible because it
includes the quantity that Jones purchased and distributed. He contends that
he should be held accountable for only half of the 39 kilograms.
      A PSR is presumed to be reliable, and the sentencing court may rely on
the PSR and adopt it in the absence of rebuttal evidence. Alaniz, 726 F.3d at
619. The burden is on the defendant to show that the information in the PSR
is “materially untrue.” Id. (quotation marks omitted). Although Jones objected
to the probation officer’s drug quantity determinations, he did not present any
evidence to rebut the findings made in the PSR and the Addendum to the PSR.
Given the lack of rebuttal evidence, the district court did not err in relying on
the information furnished by the probation officer. See Alaniz, 726 F.3d at 619.




                                       2
    Case: 14-10120    Document: 00512944908     Page: 3   Date Filed: 02/23/2015


                                 No. 14-10120

      The sentence for one convicted of a drug offense is “based on the amount
of drugs involved in the offense.” United States v. Rhine, 583 F.3d 878, 885
(5th Cir. 2009); see § 2D1.1(a)(5), (c). “This quantity includes both drugs with
which the defendant was directly involved, and drugs that can be attributed to
the defendant in a conspiracy as part of his ‘relevant conduct’” under U.S.S.G.
§ 1B1.3(a)(1)(B). United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994).
A defendant convicted of a controlled substance offense “is accountable for all
quantities of contraband with which he was directly involved and, in the case
of a jointly undertaken criminal activity, all reasonably foreseeable quantities
of contraband that were within the scope of the criminal activity that he jointly
undertook.” § 1B1.3, comment. (n.2).
      The pooling of funds to make heroin purchases is some evidence that
Roberts was engaged in a jointly undertaken criminal activity with Jones with
respect to the amount purchased. See § 1B1.3, comment. (n.2)(c)(6). Further,
the PSR indicates that Roberts and Jones used the same drug couriers, and
this likewise “is some evidence of a common criminal enterprise.” United
States v. Gallardo-Trapero, 185 F.3d 307, 314 (5th Cir. 1999). In view of the
foregoing, the district court’s determination that Roberts was accountable for
the 39 kilograms of heroin in question is plausible in light of the entire record
and thus is not clearly erroneous. See Alaniz, 726 F.3d at 618.
      To the extent that Roberts challenges the attribution of an additional
relatively small quantity of heroin, we do not consider his argument because,
even if successful, it would not affect the calculation of the sentencing
guidelines range. See United States v. Lopez, 183 F. App’x 445, 447 (5th Cir.
2006).
      AFFIRMED.




                                       3
