     Case: 09-41248     Document: 00511244507          Page: 1    Date Filed: 09/24/2010




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

                                                 FILED
                                                                        September 24, 2010
                                     No. 09-41248
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDGAR RICARDO CRUZ-FLORES,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:09-CR-691-2


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Edgar Ricardo Cruz-Flores pleaded guilty to possession with intent to
distribute more than 50 kilograms of marijuana. Cruz-Flores asserts that the
district court violated his right to receive the presentence report (“PSR”) 35 days
prior to sentencing under Federal Rule of Criminal Procedure 32. He asserts
that he was denied sufficient time to conduct adequate research, file a written
objection to the two-level aggravated role enhancement, and gather evidence and
witnesses in support of his objection.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41248    Document: 00511244507 Page: 2         Date Filed: 09/24/2010
                                 No. 09-41248

      Rule 32 provides that the probation officer must disclose the PSR to the
defendant 35 days prior to sentencing “unless the defendant waives this
minimum period.” F ED. R. C RIM. P. 32(e)(2). Defense counsel explicitly agreed
to hold the sentencing hearing one week after the PSR was to be revised to
include the aggravated role enhancement based upon new information from a
codefendant. During the subsequent sentencing hearing, counsel did not request
additional time to prepare but instead proceeded without objection to the timing
of the disclosure of the revised PSR. Counsel presented a detailed objection to
the two-level enhancement and conducted a thorough cross examination of the
codefendant who provided the information. Cruz-Flores cannot now claim that
he had insufficient time to investigate and respond to the revised PSR. See F ED.
R. C RIM. P. 32(e); United States v. Johnston, 127 F.3d 380, 403-04 (5th Cir. 1997)
(“Considering counsel’s statement that he was ready to proceed with the
sentencing, defendant cannot now claim that he had insufficient time to
investigate the charge.”).
      Moreover, even if we were to hold that Cruz-Flores did not waive the
35-day period under Rule 32(e), he fails to establish that the timing of the
disclosure was plain error. See United States v. Esparza-Gonzalez, 268 F.3d 272,
274 (5th Cir. 2001) (“As neither applicant raised the issue of noncompliance with
Rule 32 in the district court, however, we correct the error only if the error was
plain and affected the applicants’ substantial rights.”). He points to nothing in
the record that indicates that his sentence would have been different if he had
received the PSR 35 days prior to the sentencing hearing. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009) (explaining that, for an error to warrant
reversal for plain error, it “must have affected the appellant's substantial rights,
which in the ordinary case means he must demonstrate that it affected the
outcome of the district court proceedings” (internal quotation marks and citation
omitted)).



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   Case: 09-41248     Document: 00511244507 Page: 3         Date Filed: 09/24/2010
                                  No. 09-41248

      Cruz-Flores also challenges the district court’s finding that he recruited
and exercised managerial authority over at least one other person involved in
the offense. The district court relied on in-court testimony by Cruz-Flores’s
codefendant to make the finding. As he argued in the district court, Cruz-Flores
asserts that the testimony lacked sufficient indicia of reliability to form the basis
of the enhancement because his codefendant was poised to receive a lesser
sentence in exchange for testifying. The district court was able to observe the
witness’s demeanor as he testified to facts within his personal knowledge. We
defer to the district court’s credibility determination.         See United States v.
Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008) (noting, in review of a sentence
level enhancement, that we give deference to a district court’s credibility
determinations).
      Additionally, Cruz-Flores asserts that his codefendant’s testimony was not
credible because he testified that Cruz-Flores used a mobile telephone or radio
to communicate with someone in the United States, but no such device was
found by the arresting agents. The fact that no phone or radio was found does
not render the district court’s finding implausible in light of the record as a
whole. The agents described how the suspects, including Cruz-Flores, jumped
into a sand pit filled with water in an attempt to escape. It is plausible that any
mobile device Cruz-Flores was carrying was discarded or lost in the water. The
district court’s finding that he exercised managerial authority is “plausible in
light of the entire record,” and thus it is not clearly erroneous. See United States
v. Valles, 484 F.3d 745, 759 (5th Cir. 2007) (“A factual finding is not clearly
erroneous if it is plausible in light of the entire record.”).
      The judgment of the district court is AFFIRMED.




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