     Case: 15-10227      Document: 00513400474         Page: 1    Date Filed: 02/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-10227                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 29, 2016
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee,            Clerk
v.

SERGIO GODINEZ, also known as E. T.,

                                                 Defendant-Appellant.


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


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant pled guilty as charged in the indictment with
conspiracy to possess with intent to distribute 100 grams or more of heroin.
The district court imposed a sentence of 180 months’ imprisonment and a 4-
year term of supervised release. We affirm.
                     I. FACTS & PROCEDURAL HISTORY
       Defendant-Appellant Sergio Godinez was charged by indictment with
conspiracy to possess with intent to distribute 100 grams or more of a mixture
and substance containing a detectable amount of heroin in violation of 21


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10227
U.S.C. § 846. In accordance with a plea agreement, he pled guilty to that
offense. In determining his base offense level at sentencing, the district court
held Godinez accountable for heroin and methamphetamine amounts that had
a marihuana equivalency of 6,433.2 kilograms. Based on that drug quantity,
Godinez had a base offense level of 32 pursuant to the Sentencing Guidelines
drug quantity table. See U.S.S.G. § 2D1.1(c)(4) (applying base offense level of
32 to offenses involving “[a]t least 3,000 KG but less than 10,000 KG of
Marihuana”).     The drug amounts for which Godinez was held responsible
included 1,275 grams of heroin and 1,275 grams of methamphetamine that he
allegedly obtained from an unidentified confidential informant (“CI”).
      Godinez objected to the use of the information provided by the CI because
it was uncorroborated and unsupported by other information or evidence. The
district court overruled the objection at sentencing. In the Presentence Report
(“PSR”) addendum, the Government stated that the information regarding the
drug quantities in Paragraphs 19 and 20 was provided by a CI that law
enforcement had deemed reliable, and that reliability was further confirmed
by an interview between the Probation Officer (“PO”) who compiled the PSR
and the case agent. The Government also stated that the case agent would be
available to testify as to the reliability of the information provided by the CI. 1
      The district court also applied a 2-level sentencing enhancement
pursuant to U.S.S.G. § 2D1.1(b)(5) based on a finding that Godinez knew that
the methamphetamine involved in the offense was imported from Mexico. The
district court also applied a 2-level enhancement pursuant to § 2D1.1(b)(12)
because Godinez maintained a premises for the purpose of manufacturing and
distributing a controlled substance. 2 Additionally, Godinez received a 3-level


      1 For reasons that are unclear from the record, the case agent never testified at
sentencing.
      2 Godinez does not challenge this particular enhancement on appeal.

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                                 No. 15-10227
reduction due to acceptance of responsibility. With a criminal history category
of II, the total offense level was calculated to be 35, resulting in a Guidelines
range of 188 to 235 months.
      The district court imposed a sentence of 180 months’ imprisonment
followed by a 4-year term of supervised release. In imposing this sentence, the
district court varied downward from the Guidelines range in order to give
Godinez credit for time served on a related case. The district court clarified
that it had extensively considered the Section 3553(a) sentencing factors and
found the 180-month sentence imposed to be appropriate in light of “all of the
facts and circumstances.” See 18 U.S.C. § 3553(a). It went on to state that the
sentence would provide just punishment and protect the public from Godinez’s
future criminal activity, pointing to the large amount of heroin at issue and
Godinez’s possession of an AK-47. The district court expressed that even if it
had erred in overruling any of Godinez’s objections, it would have nevertheless
imposed the same sentence in light of the Section 3553(a) sentencing factors.
      Godinez filed this appeal challenging the district court’s calculation of
drug quantities contained in Paragraph 19 of the PSR and the 2-level
enhancement applied pursuant to § 2D1.1(b)(5), based on the drugs at issue
having been imported from Mexico.
                              II. DISCUSSION
      We review the sentence imposed for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007).     We must “ensure that the district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range.”        Id.   The district court’s
interpretation and application of the Guidelines are reviewed de novo, while
its factual findings are reviewed for clear error. United States v. Hernandez-
Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (citation and internal quotation
marks omitted). If the court finds a significant procedural error, it must
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                                   No. 15-10227
remand for resentencing unless the error was harmless. United States v.
Delgado-Martinez, 564 F.3d 750, 752–53 (5th Cir. 2009).
      A. Drug Quantity
      Godinez’s first argument on appeal pertains to the drug quantities
calculated by the district court wherein it relied on the information conveyed
in Paragraph 19 of the PSR that was provided by the CI. He argues that the
CI’s out-of-court statements attributing the drug quantities to him were not
sufficiently corroborated by anything in the record. 3 We disagree.
      The quantity of drugs attributable to a defendant includes both drugs
with which the defendant was directly involved and drugs that can be
attributed to him in a conspiracy as part of his “relevant conduct” under
U.S.S.G. § 1B1.3(a)(1)(B). See United States v. Duncan, 191 F.3d 569, 576 (5th
Cir. 1999). The district court’s determination of drug quantity for sentencing
purposes is a factual finding that this court reviews for clear error. See United
States v. Harris, 740 F.3d 956, 966–67 (5th Cir. 2014) (citation omitted). A
factual finding is not clearly erroneous if it is plausible in light of the record
read as a whole. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008) (citation omitted).
      In making factual determinations at sentencing, the district court “may
consider relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. §
6A1.3(a), p.s. This court has interpreted this specific guideline as requiring
that all facts used for sentencing purposes be “reasonably reliable.” United
States v. Shacklett, 921 F.2d 580, 584–85 (5th Cir. 1991). “[T]he district court



      3  Godinez makes no argument regarding the cause for non-disclosure of the CI’s
identity and instead focuses on the lack of corroboration for the CI’s statements.
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has significant discretion in evaluating reliability.” United States v. Young,
981 F.2d 180, 185 (5th Cir. 1992) (citation omitted). “Out-of-court declarations
by an unidentified informant may be considered where there is good cause for
the non-disclosure of the informant’s identity and there is sufficient
corroboration by other means.” Id. at § 6A1.3, p.s., commentary; see United
States v. Rogers, 1 F.3d 341, 343–44 (5th Cir. 1993).
      A PSR generally bears sufficient indicia of reliability to be considered as
evidence by a sentencing judge when making factual determinations. United
States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir. 1998) (citation omitted).
However, “[b]ald, conclusionary statements do not acquire the patina of
reliability by mere inclusion in the PSR.” Id. (internal quotation marks and
citation omitted). When such statements lack corroboration, this court cannot
assure itself that “the PSR contains sufficient indicia of reliability.” Id.
      Paragraph 19 of the PSR states:
      From March 2012 to August 2013, Godinez used four known
      suppliers. His most significant relationship occurred in 2012 with
      an unindicted individual whose name is redacted. For six months,
      in 2012, Godinez received deliveries from this individual. These
      deliveries consisted of ¼ ounce of heroin and ¼ ounce of
      methamphetamine, per trip, and happened as often as two or three
      times per day. Using a conservative estimate of ¼ ounce of heroin
      and methamphetamine, once per day, for a period of six months,
      Godinez received 1,275 grams of heroin and 1,275 grams of
      methamphetamine from this individual.

(emphasis in original). According to the record, in preparing the PSR, the PO
gathered information from the indictment, Godinez’s factual resume,
investigative material compiled and prepared by law enforcement officers, and
an interview with the case agent. In his interview with the PO, the case agent
clarified and corroborated the information contained in the investigative



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                                         No. 15-10227
material used to compile the PSR.                 Additionally, law enforcement officers
represented that they deemed the CI to be reliable.
      The information in Paragraph 19 was also corroborated by other
information contained in the PSR, including a description of a controlled drug
buy at Godinez’s home and information gathered from other sources 4 and
codefendants about Godinez’s extensive involvement in drug-trafficking,
including the overall scheme of conduct and the roles of the various
coconspirators. See Rogers, 1 F.3d at 343–44 (finding no clear error in relying
on confidential informants’ hearsay reports that were partially incorrect but
partially corroborated by extensive government investigation).                Finally, the
amount of drugs concluded to be at issue in Paragraph 19, as relied on by the
district court, was estimated conservatively relative to the initially described
representations        of   the    CI,    i.e.,   a   quarter   ounce   of   heroin   and
methamphetamine, once per day, for six months, as opposed to a quarter ounce
of heroin and methamphetamine, two to three times per day, for six months.
See Young, 981 F.2d at 184–86 (finding no clear error where the district court
relied on double and triple hearsay from CIs corroborated and vouched for by
two police officers, but halved the amount of drugs attributed to each defendant
in order to account for possible exaggeration).
      In light of the PO’s interview with the case agent wherein the agent
clarified and corroborated the information found in the investigative material
relied upon to compile the PSR, we hold that the information contained
therein, including the description of the CI’s involvement as contained in
Paragraph 19, is “reasonably reliable.” Shacklett, 921 F.2d at 585. Further,
given that law enforcement officers deemed the CI reliable and the district
court’s “significant discretion in evaluating [the] reliability” of that


      4   The identities of these sources are also protected.
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                                    No. 15-10227
information, we see no clear error in its calculation of the drug quantities,
relying on the information contained in Paragraph 19 of the PSR. See Young,
981 F.2d at 185.
      B. Importation Enhancement
      Next, Godinez challenges the district court’s application of a 2-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(5) 5 based on its finding that
Godinez knew that the methamphetamine involved in the offense was
imported from Mexico. Godinez does not dispute that the methamphetamine
in this case was imported from Mexico, but rather, he asserts that there is no
evidence that he had any personal knowledge regarding the importation of the
drugs.
      This court has held that the enhancement applies “regardless of whether
the defendant had knowledge of that importation.” United States v. Serfass,
684 F.3d 548, 552 (5th Cir. 2012). Thus, Godinez’s argument that he had no
personal knowledge of the importation of the drugs is foreclosed by binding
precedent which we decline to revisit herein. Id.; see also United States v.
Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002) (holding that a panel of this
court may not overrule a decision made by a prior panel absent en banc
consideration, a change in relevant statutory law, or an intervening decision
by the Supreme Court). Accordingly, we uphold the district court’s application
of the 2-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(5). See Serfass,
684 F.3d at 552.
                                  III. CONCLUSION
      For the aforementioned reasons, we affirm the sentence imposed by the
district court in all respects.



      5If the offense of conviction “involved the importation of amphetamine or
methamphetamine,” a defendant’s base offense level is increased by two levels.
                                         7
