     Case: 09-40908     Document: 00511143613          Page: 1    Date Filed: 06/16/2010




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

                                                  FILED
                                                                            June 16, 2010
                                     No. 09-40908
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAYMUNDO EDGAR GONZALEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:08-CR-1168-3


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Raymundo Edgar Gonzalez appeals the sentence imposed following his
guilty plea to conspiracy to possess with the intent to distribute more than five
kilograms of cocaine and more than 1,000 kilograms of marijuana. Gonzalez
argues that the amount of cocaine attributed to him was not reasonably
foreseeable as relevant conduct. He also argues that the estimates relating to
unseized amounts of cocaine were not proven by a preponderance of the
evidence.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40908      Document: 00511143613 Page: 2       Date Filed: 06/16/2010
                                   No. 09-40908

         We review sentences for reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 50 (2007). The district court’s
calculation of the quantity of drugs involved in an offense is a factual
determination that we review for clear error.         United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Betancourt, 422
F.3d 240, 246 (5th Cir. 2005). If a district court’s finding is plausible in light of
the record as a whole, there is no clear error. United States v. Solis, 299 F.3d
420, 455 (5th Cir. 2002).
         The relevant conduct of a conspiracy includes “all reasonably foreseeable
acts and omissions of others in furtherance of the jointly undertaken criminal
activity.”     U.S.S.G. § 1B1.3(a)(1)(B).      For offenses involving controlled
substances, the defendant 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).
         Although he objected to the reasonable foreseeability of some of the
amounts of cocaine attributed to him, Gonzalez did not raise his argument that
the presentence report (PSR) incorrectly reported his “start date” in the
conspiracy in the district court. Accordingly, this argument is reviewed for plain
error. See United States v. Ellis, 564 F.3d 370, 377 (5th Cir.), cert. denied, 130
S. Ct. 371 (2009).    However, even subtracting the 12.23 kilograms of cocaine
that Gonzalez asserts were incorrectly attributed to him, Gonzalez’s offense level
would have remained at 38. Accordingly, no plain error is shown. See id.
         As to the additional amounts of cocaine that Gonzalez claims were
unforeseen, the PSR clearly documented Gonzalez’s participation in the
conspiracy as of September 7, 2007.          A district court may adopt the facts
contained in the PSR without further inquiry if those facts have an adequate
evidentiary basis and the defendant does not present rebuttal evidence. United

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   Case: 09-40908      Document: 00511143613 Page: 3    Date Filed: 06/16/2010
                                   No. 09-40908

States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). “Mere objections do not
suffice as competent rebuttal evidence.” United States v. Parker, 133 F.3d 322,
329 (5th Cir. 1998).
      Gonzalez also has not shown that the district court erred in determining
the amount of unseized cocaine that was attributed to him. Despite some minor
inconsistencies between the PSR and the testimony of the Government agent,
the PSR had a sufficient indicia of reliability to support its probable accuracy.
The district court thus properly relied on the PSR’s estimations of the unseized
loads. See United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006). Further,
Gonzalez did not rebut the information contained in the PSR. See Ollison, 555
F.3d at 164. Accordingly, his sentence is AFFIRMED.




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