     Case: 15-40580      Document: 00513344286         Page: 1    Date Filed: 01/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40580
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 15, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CAROL CHERI THOMAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-141


Before SMITH, BENAVIDES and HAYNES, Circuit Judges.
PER CURIAM: *
       Carol Thomas appeals from her sentence following her guilty plea
conviction on three counts of mail fraud. The district court sentenced Thomas
to 57 months of imprisonment based, in part, upon a two level adjustment for
obstruction of justice pursuant to U.S.S.G. § 3C1.1. She argues on appeal that
the district court erred in making the § 3C1.1 adjustment because she made
statements in a verified objection to her presentencing report that prove that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40580   Document: 00513344286     Page: 2   Date Filed: 01/15/2016


                                  No. 15-40580

she did not “willfully” take any actions to obstruct or impede the
administration of justice.    According to Thomas, because the Government
failed to submit any evidence to rebut the statements in her verified objection,
the district court erred in making the adjustment.
        This court reviews “the district court’s legal interpretation of the
Sentencing Guidelines de novo and factual findings for clear error.” United
States v. Brooks, 681 F.3d 678, 712 (5th Cir. 2012). A factual finding is clearly
erroneous if it is implausible in light of the record as a whole. See United States
v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). “When making factual findings
for sentencing purposes, a district court may consider any information which
bears sufficient indicia of reliability to support its probable accuracy.” United
States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (internal quotation marks
and citation omitted); § 6A1.3 (court may consider “relevant information
without regard to its admissibility under the rules of evidence applicable at
trial”).
        Generally, “a PSR bears sufficient indicia of reliability, such that a
sentencing judge may consider it as evidence in making the factual
determinations required by the Sentencing Guidelines.” Huerta, 182 F.3d at
364.     A district court, therefore, may adopt the facts contained in a PSR
“without further inquiry if those facts have an adequate evidentiary basis with
sufficient indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the PSR is
unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal
quotation marks and citation omitted).       Facts in a PSR that do have an
adequate evidentiary basis can only be refuted by the defendant with “rebuttal
evidence demonstrating that those facts are ‘materially untrue, inaccurate or
unreliable.’” Harris, 702 F.3d at 230 (quoting Huerta, 182 F.3d at 364). A



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                                 No. 15-40580

defendant’s “[m]ere objections do not suffice as competent rebuttal evidence.”
United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998) (citing United States
v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994)).
      In making a § 3C1.1 upward adjustment to Thomas’s sentence, the
district court relied upon the findings contained in her presentencing report.
Those findings had an “adequate evidentiary basis with sufficient indicia of
reliability,” Harris, 702 F.3d at 230, based upon the statements made by the
Government at Thomas’s sentencing hearing.            Although Thomas’s sworn
objection contained statements which refuted the findings of the presentencing
report, Thomas did not testify at the sentencing hearing and she otherwise
offered no evidence in support of her objections. Because Thomas failed to
refute the facts in her presentencing report with evidence demonstrating that
those facts are “materially untrue, inaccurate or unreliable,” Huerta, 182 F.3d
at 364, Thomas cannot establish that the district court’s findings are clearly
erroneous or implausible in light of the record as a whole. Accordingly, the
district court’s assessment of a two-level upward adjustment on the basis of
§ 3C1.1 and corresponding refusal to make any downward adjustment based
on § 3E1.1 were proper.
      The judgment of the district court is AFFIRMED.




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