                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 21 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-8025
                                                   (D.C. No. 00-CR-101-02)
    REUBEN GARCIA,                                        (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and         BRORBY ,
Senior Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Appellant Reuben Garcia challenges a two-level enhancement to his

sentence for drug-related offenses, arguing that the government failed to


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
prove that he was a leader or organizer of criminal activity as described in

Section 3B1.1(c) of the Sentencing Guidelines.   1
                                                     We exercise jurisdiction under

18 U.S.C. § 3742 and affirm.


                                   I. Background

      Between April 1 and June 15, 2000, Mr. Garcia obtained methamphetamine

and heroin from sources in California and paid a methamphetamine addict, Walter

J. Hei, to transport the drugs from California to Minneapolis, Minnesota, where

the drugs were sold. On one occasion when Mr. Hei was driving to Minnesota, he

was stopped by police in Wyoming for an expired registration, and the drugs were

discovered with the assistance of a canine unit. Mr. Garcia, Mr. Hei, and Mr.

Garcia’s cousin, Amado Garcia (who was traveling with Mr. Hei when he was

stopped by the police), were charged with conspiracy to possess and distribute

methamphetamine.

      A superseding indictment charged Mr. Garcia with conspiracy to possess

with intent to distribute methamphetamine and heroin, aiding and abetting

possession with intent to distribute methamphetamine, and aiding and abetting

possession with intent to distribute heroin. Mr. Garcia pled guilty to all three

counts of the superseding indictment.


1
       The November 1, 2000 Sentencing Guidelines were applied by the district
court and apply to this appeal.

                                          -2-
      At his sentencing hearing, Mr. Garcia moved for a downward departure on

the grounds that his criminal history was over represented, and objected to the

government’s effort to seek a two-level enhancement to his sentence for his role

as a leader or organizer in the offense. The sentencing court granted the

downward departure but imposed the two-level leader/organizer enhancement.

In concluding that Mr. Garcia had served the role of a leader/organizer, the

sentencing court focused on the fact that Mr. Garcia recruited Mr. Hei, paid

Mr. Hei, instructed Mr. Hei in trafficking, provided Mr. Hei with specially crafted

undergarments in which to transport the drugs, and otherwise controlled the

logistics of the transport. The sentencing court relied heavily on the investigative

report and on testimony by Mr. Hei which the court observed in separate

proceedings. Mr. Garcia now appeals the imposition of the enhancement.


                                  II. Discussion

      Section 3B1.1(c) of the Sentencing Guidelines mandates that a defendant’s

offense level be increased two levels “[i]f the defendant was an organizer, leader,

manager, or supervisor in any criminal activity.” When the government

seeks to increase a defendant’s sentence, it bears the burden of proving by

a preponderance of the evidence that the increase is justified. United States v.

Torres, 53 F.3d 1129, 1142 (10th Cir. 1995).



                                         -3-
       When determining whether to impose a leader/organizer enhancement, the

sentencing court should consider

       the exercise of decision making authority, the nature of participation
       in the commission of the offense, the recruitment of accomplices, the
       claimed right to a larger share of the fruits of the crime, the degree
       of participation in planning or organizing the offense . . . and the
       degree of control and authority exercised over others.

USSG § 3B1.1, cmt. (n.4) (2000). “In considering these factors, the

sentencing court should remain conscious of the fact that the gravamen of this

enhancement is control, organization, and responsibility for the actions of other

individuals . . . .” Torres, 53 F.3d at 1142.

       The basic thrust of Mr. Garcia’s argument on appeal is that the government

failed to meet its burden of proof because it failed to introduce key facts into

evidence and otherwise presented information that was unreliable or insufficient.

This assertion is reiterated through four distinct allegations of error:   that the

district court (1) impermissibly adopted the findings of the presentence report

(PSR) and the investigative report; (2) impermissibly considered unreliable

hearsay; (3) impermissibly relied on information not in evidence; and (4) failed

to consider the factors relevant to determination of whether Mr. Garcia was

a leader/organizer.

       In reviewing a sentencing decision, we review the district court’s legal

conclusions de novo and its factual findings for clear error. United States v.


                                              -4-
Baez-Acuna, 54 F.3d 634, 638 (10th Cir. 1995). The determination that a

defendant was a leader of a criminal activity is an issue of fact. United States v.

Browning, 61 F.3d 752, 755 (10th Cir. 1995). Where a defendant failed to raise

an issue before the sentencing court our review is for plain error only. United

States v. Farnsworth, 92 F.3d 1001, 1007 (10th Cir. 1996).

             A. The District Court Was Free to Adopt the Findings
                 of the Investigative and Presentence Reports

      Mr. Garcia asserts that a sentencing court may not simply adopt the

findings of the PSR (or, by extension, the findings in the investigative report that

supports the PSR), citing   Farnsworth. See 92 F.3d at 1011. The prohibition

stated in Farnsworth is based on Fed. R. Crim. Pro. 32(c)(1), 2 which requires that

“[f]or each matter controverted [in the presentence report], the court must make

either a finding on the allegation or a determination that no finding is necessary

because the controverted matter will not be taken to account in, or will not affect,

sentencing.”

      The fact that a defendant has objected to the ultimate conclusions drawn by

the PSR, however, does not necessarily imply that a “controverted matter” exists.

To successfully invoke the fact-finding obligation of Rule 32(c)(1), the defendant

must make “specific allegations of factual inaccuracy.” United States v. Murray,



2
      Formerly Rule 32(c)(3)(D) .

                                         -5-
82 F.3d 361, 363 (10th Cir. 1996) (quoting United States v. Pedraza, 27 F.3d

1515, 1531 (10th Cir. 1994)); see also United States v. Huerta, 182 F.3d 361,

364 (5th Cir. 1999) (defendant’s rebuttal evidence must demonstrate that

information in PSR is materially untrue, inaccurate or unreliable). Arguments

that “challenge[] the district court’s application of the guidelines to the facts and

not the facts themselves” do not trigger any obligation on the part of the district

court to make specific findings. United States v. Windle, 74 F.3d 997, 1002

(10th Cir. 1996); see also United States v. Hall, 212 F.3d 1016, 1023 (7th Cir.

2000) (defendant must offer evidence beyond his own mere denials to prompt

further inquiry into disputed sentencing issues).

      Here, Mr. Garcia lodged objections directly to the PSR and reiterated his

objections both in a subsequent memorandum addressing sentencing issues and

again at the sentencing hearing. In his objections, Mr. Garcia denied that he was

a leader, claimed that he and Mr. Hei decided together to distribute the drugs in

Minneapolis, and described their relationship as that of “co-equals.” He did not,

however, rebut any of the core facts supporting the conclusion that he was a

leader or organizer, for example: that he paid Mr. Hei, purchased train tickets for

one of the transports, and supplied the specially crafted undergarments in which

Mr. Hei transported the drugs.   Because Mr. Garcia did not offer any evidence

specifically controverting factual information in the PSR, the sentencing court


                                          -6-
was not prohibited from adopting the factual findings of the PSR or the

investigative report.

                 B. The Hearsay Testimony Was Corroborated by
                         Facts Admitted by the Defendant

       Mr. Garcia also argues that the sentencing court improperly considered

unreliable hearsay in the form of the investigative report. In the report, a police

officer recounted statements made by Mr. Hei regarding the nature of his

relationship with Mr. Garcia and described an undercover phone call from Mr.

Hei to Mr. Garcia.

       The rules of evidence do not apply to sentencing hearings, and, as such, a

sentencing court is free to consider hearsay that bears   “some minimal indicia of

reliability.” Browning, 61 F.3d at 755; see also USSG § 6A1.3(a). Such indicia

of reliability are present here. We have previously held that hearsay may be

sufficiently reliable if corroborated by facts admitted by a defendant in pleading

guilty to the indictment.   See United States v. Roach, 978 F.2d 573, 576

(10th Cir. 1992) (hearsay testimony by agent reliable even though contradicted by

defendant’s testimony).

       Here, by pleading guilty to the indictment, Mr. Garcia admitted that he

asked Mr. Hei to transport the drugs, paid Mr. Hei, obtained and provided the

drugs to Mr. Hei, provided specially crafted undergarments for transporting the

drugs, paid Mr. Hei’s travel expenses, and verbally directed Mr. Hei’s actions

                                            -7-
over the telephone.   3
                          These admitted facts provide sufficient corroboration for the

hearsay testimony of the police officer.

               C. It Was Not Plain Error for the Sentencing Court
                     to Rely on Information Not in Evidence

       Mr. Garcia further argues that the sentencing court erred in relying on the

investigative report because the government did not seek to have the report

formally admitted into evidence. This objection was not raised before the

sentencing court; therefore, our review is for plain error only.    See Farnsworth ,

92 F.3d at 1007. To demonstrate the existence of plain error, an appellant must

show (1) there is error, (2) that is plain, and (3) that affects substantial rights.

Johnson v. United States, 520 U.S. 461, 466-67 (1997).

       In determining a sentence, t he district court may appropriately consider all

sources of information without limitation; the sole touchstone is reliability. See

United States v. Beaulieu, 893 F.2d 1177, 1179 (10th Cir. 1990). Thus, the

sentencing court may consider information that would be inadmissible at a

criminal trial, including reliable hearsay and statements of co-defendants made in

separate proceedings. See USSG § 6A1.3, cmt.; Beaulieu, 893 F.2d at 1181.




3
       One of Mr. Garcia’s primary arguments is that it was improper for the
sentencing court to rely on a description of this undercover phone call from Mr.
Hei to Mr. Garcia. The essential facts of this phone call, however, were included
in the factual basis of the indictment and thus admitted by Mr. Garcia.

                                             -8-
      In light of the sentencing court’s virtually limitless prerogative to consider

information known to it from a variety of sources, and in light of the admissions

by Mr. Garcia detailed above, even if there was error in not requiring the

government to make a formal evidentiary submission, it did not affect Mr.

Garcia’s substantial rights.

               D. The Sentencing Court Adequately Considered
                       the Relevant Sentencing Factors

      Finally, Mr. Garcia asserts that the sentencing court failed to consider

the factors outlined in the commentary to Section 3B1.1. Specifically, Mr. Garcia

points to the lack of any evidence pertaining to one of the factors: whether he

demanded a greater share of the profits. There is no merit to this argument.

      “[T]he commentary to this guideline does not mandate that sentencing

courts expressly consider each and every factor listed therein, but rather, it

merely encourages it.” Torres, 53 F.3d at 1143. We have held that      a defendant

may be found to be a “leader” under Section 3B1.1(c) based “upon a mere

showing ‘that the defendant exercised any degree of direction or control over

someone subordinate to him in the distribution scheme.’” Baez-Acuna, 54 F.3d

at 639 (quoting United States v. Backas, 901 F.2d 1528, 1530 (10th Cir. 1990)).

In light of the information contained in the investigative report and Mr. Garcia’s

own admissions based on the superseding indictment, there was ample evidence



                                         -9-
indicating that he exercised control over Mr. Hei in the trafficking and

distribution of the drugs at issue here.

      The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.


                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




                                           -10-
