     Case: 09-10966 Document: 00511272538 Page: 1 Date Filed: 10/25/2010




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

                                                 FILED
                                                                          October 25, 2010
                                     No. 09-10966
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSEPH DESHUN JOHNSON, also known as Deshun Joseph Johnson, also
known as Buck,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:08-CR-98-33


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
       Joseph Deshun Johnson pleaded guilty to conspiracy to possess with the
intent to distribute more than five kilograms of cocaine. The district court
sentenced Johnson to a below-guidelines sentence of 324 months of
imprisonment. Johnson appeals his sentence, arguing that the district court
clearly erred in adopting the presentence report’s (PSR’s) finding that he
converted a majority of his powder cocaine into crack cocaine.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10966 Document: 00511272538 Page: 2 Date Filed: 10/25/2010

                                  No. 09-10966

      The Government argues that Johnson’s argument is not reviewable on
appeal because he withdrew his objection to the determination at the sentencing
hearing. Perceiving no intentional withdrawal of Johnson’s objection to the PSR,
we reject the Government’s assertion of a waiver. See United States v. Arviso-
Mata, 442 F.3d 382, 384 (5th Cir. 2006).
      Turning to the merits of the appeal, we review the district court’s factual
finding for clear error. United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th
Cir. 2005). “In making its factual findings for sentencing, a district court may
adopt the findings of the PSR without additional inquiry if those facts have an
evidentiary basis with sufficient indicia of reliability and the defendant does not
present rebuttal evidence or otherwise demonstrate that the information is
materially unreliable.” United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009)
(internal quotation marks and citation omitted). The information contained in
the offense conduct portion of Johnson’s PSR was gleaned from, inter alia,
“investigative material prepared and compiled by FBI and ATF agents/TFOs
[task force officers], DPS deputies, and Arlington and Fort Worth Police
Department officers.” The PSR stated that the probation officer had personally
conducted interviews with two FBI Special Agents and an ATF Special Agent,
all of whom were identified by name.         Further, in response to Johnson’s
objection, the probation officer stated that her information was derived from “the
investigative materials and the reports of several reliable codefendants.”
      The PSR was supported by an adequate evidentiary basis with sufficient
indicia of reliability. Johnson did not present any rebuttal evidence; nor did he
demonstrate that the information was materially unreliable. The district court
thus did not clearly err in adopting the finding made in the PSR. See Ford, 558
F.3d at 377.
      AFFIRMED.




                                        2
