     Case: 15-10247      Document: 00513454692         Page: 1    Date Filed: 04/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-10247                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    April 6, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

ARNULFO MALDONADO, also known as Pelon,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-208-5


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Arnulfo Maldonado appeals the sentence he received after pleading
guilty to conspiracy to possess with intent to distribute 100 grams or more of
heroin.     The district court sentenced Maldonado to 292 months of
imprisonment and four years of supervised release.
       For the first time on appeal, Maldonado contends that the district court
erred in finding the amount of heroin used to determine his base offense level


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-10247
under U.S.S.G. § 2D1.1(c).       The presentence investigation report (“PSR”)
attributed 240.88 grams of heroin to Maldonado based on seizures and heroin
found during a search of Maldonado’s residence.         The PSR attributed an
additional 945 grams based on information obtained from a confidential
informant. Maldonado argues that the PSR’s attribution of the additional
heroin to him does not bear sufficient indicia of reliability to be accepted
without further inquiry.      Because Maldonado failed to properly raise this
objection at sentencing, our review is for plain error.        United States v.
Dominguez–Alvarado, 695 F.3d 324, 327 (5th Cir. 2012). On plain error review,
we “may correct a sentencing determination only if: (1) there is error; (2) it is
plain; and (3) it affects substantial rights.” United States v. Cedillo–Narvaez,
761 F.3d 397, 402 (5th Cir.), cert. denied, 135 S. Ct. 764 (2014). If we determine
that these three prongs are satisfied, “then we have the discretion to remedy
the forfeited error, but we should not exercise that discretion unless ‘the error
seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (alteration in original) (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).
      We find no plain error in the district court’s conclusion that the
additional 945 grams of heroin were attributable to Maldonado.            “When
making factual findings for sentencing purposes, district courts ‘may consider
any information which bears sufficient indicia of reliability to support its
probable accuracy.’” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012)
(quoting United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002)). Contrary to
Maldonado’s suggestion, his PSR contained sufficient indicia of reliability even
though it attributed the additional heroin to Maldonado based on information
obtained from a confidential informant.          Law enforcement had been
investigating the drug-trafficking scheme in which Maldonado was involved
for several years, and, during that time, the information provided by the
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                                  No. 15-10247
confidential informant was corroborated and determined to be reliable. And
the informant’s statements about the amount of heroin attributable to
Maldonado were consistent with other details of the investigation.             For
example, Maldonado was frequently described as a large-scale dealer of heroin
and supplied at least four “runners”—individuals who distributed heroin to
their own customers—with between 6 and 12 grams of heroin per day. Because
the PSR contained sufficient indicia of reliability to support the confidential
informant’s report, the district court committed no error in attributing the
additional 945 grams of heroin to Maldonado. See United States v. Rogers, 1
F.3d 341, 344 (5th Cir. 1993) (finding sufficient indicia of reliability to support
a confidential informant’s report where the “government[’s] investigation . . .
corroborated many of the other details of the drug distribution scheme”).
      Maldonado next contends that the district court erred in applying the
enhancement in § 2D1.1(b)(1) for possession of a dangerous weapon because
the PSR lacked sufficient indicia of reliability to establish that he possessed a
firearm. Maldonado raised this objection in the district court, so we review the
district court’s factual findings for clear error and its interpretation and
application of the Sentencing Guidelines de novo. United States v. Cisneros–
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). We perceive no error in the
district court’s reliance on the PSR to find that Maldonado possessed a
dangerous weapon. The PSR’s conclusion that Maldonado possessed a weapon
was based on the statement of a confidential informant with whom law
enforcement officials had significant experience. Other information provided
by this informant had proved credible, and the statements of this informant
were consistent with other information uncovered during the investigation.
Thus, the facts of Maldonado’s weapon possession as described in the PSR and
in the PSR Addendum had sufficient indicia of reliability and demonstrated,
by a preponderance of the evidence, a temporal and spatial relationship of the
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weapons, the drug trafficking activity, and Maldonado. See United States v.
Zuniga, 720 F.3d 587, 590–91 (5th Cir. 2013); United States v. Zapata-Lara,
615 F.3d 388, 390 (5th Cir. 2010). Accordingly, the district court committed no
error in applying an enhancement under § 2D1.1(b)(1).
      Finally, Maldonado contends that the district court erred in refusing to
award a reduction for acceptance of responsibility under § 3E1.1(a). This court
will affirm a district court’s denial of a § 3E1.1(a) reduction unless that denial
was “without foundation.” United States v. Washington, 340 F.3d 222, 227 (5th
Cir. 2003) (quoting United States v. Maldonado, 42 F.3d 906, 913 (5th Cir.
1995)). The district court found that Maldonado “significantly minimized all
relevant aspects of his criminal conduct.” For example, Maldonado stated that
he was involved in the distribution of heroin primarily to aid heroin addicts
suffering withdrawal symptoms and that he only had the 232.28 grams of
heroin that law enforcement seized from his residence because someone else
had asked him to hold onto a package. He also stated that he did not know
codefendant Sergio Godinez and, in so doing, falsely denied relevant conduct.
Based on these examples of Maldonado minimizing his criminal conduct, the
district court’s denial of a reduction under § 3E1.1(a) was not without
foundation. See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.
2008); United States v. Cabrera, 288 F.3d 163, 177 (5th Cir. 2002).
      The judgment of the district court is AFFIRMED.




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