     Case: 12-41453      Document: 00512562588         Page: 1    Date Filed: 03/17/2014




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

                                                                               FILED
                                      No. 12-41453                       March 17, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff – Appellee
v.

JOSE LUIS TOVAR,

                                                 Defendant – Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:12-CR-964-1


Before KING, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant Jose Luis Tovar appeals his sentence following his guilty plea
to two counts of being a felon in possession of a firearm. He challenges the
district court’s assessment of an enhancement under the Sentencing
Guidelines for being a supervisor or manager of criminal activity involving at
least five participants or that is otherwise extensive. For the reasons that
follow, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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          I.    FACTUAL AND PROCEDURAL BACKGROUND
      In February 2009, local law enforcement agents arrested Fernando
Moreno-Trevino for unlawfully carrying a weapon. He reported that he had
obtained the handgun from Jose Luis Tovar in December 2008. In March 2011,
federal agents obtained information from two independent sources that Tovar
was posing as a drug transporter who was stealing drug loads from drug
traffickers.   Agents learned that once he obtained the drugs from the
traffickers, he would stage a stop of the vehicle with the assistance of corrupt
local law enforcement officials. A source later informed agents that he had
overheard a telephone conversation between Tovar and Duval County Deputy
Ruben Silva, during which Tovar told the deputy that he would pay $25,000
for assistance in stealing ten kilograms of cocaine and 1,000 pounds of
marijuana. The following year, agents stopped two vehicles containing drugs
that they believed to be associated with Tovar.
      Sources informed federal agents that Tovar was searching for drug
traffickers who needed assistance in the transportation of drugs. On April 25,
2012, a source introduced Tovar to undercover agents, who posed as drug
traffickers. In a recorded telephone conversation, Tovar negotiated with the
agents to transport a load of drugs to Tampa, Florida, advising them of his fee
and the route that would be taken. The same source also advised the agents
that Tovar had an apartment in Mission, Texas, where he kept copies of false
police reports provided by the Duval County Sheriff’s Department.
      On April 30, 2012, the undercover agents traveled to a restaurant in
McAllen, Texas, and met with Tovar and the source to discuss transporting
2,500 pounds of marijuana. Tovar explained that he would follow the truck to
verify that the load vehicle made it through the United States checkpoint and
would meet them in Florida to unload the truck. During that meeting, Tovar


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also advised the agent that his younger brother, Jerry Tovar, had five weapons
to sell.
       The agents met with a source, who had a recorded telephone
conversation with both Tovar brothers about purchasing the weapons. Jose
Tovar had provided the source with photos of the weapons and then negotiated
a purchase price. Agents then met with Jerry Tovar and Ricardo Galindo at a
convenience store to complete negotiations.     The agents showed cash and
advised that they were ready to consummate the transaction. Galindo agreed
to drive one of the undercover agent’s vehicles to the location of the weapons,
while Jerry Tovar left in a Cadillac Escalade. Surveillance of the vehicles
revealed that they were driving toward Jose Tovar’s apartment. A few minutes
later, Jerry Tovar called the agents and told them to meet him at a golf course
near Jose Tovar’s apartment.
       The agents approached the location and observed their parked vehicle,
with weapons inside. They also observed the Escalade and identified both
Galindo and Jose Tovar. The agents asked Jose Tovar if all six weapons were
in the vehicle, and he responded that he had to retrieve the sixth weapon from
his residence. While his brother was gone, Jerry Tovar collected the $8,500
payment for the weapons. Moments later, Jose Tovar returned with the sixth
weapon, and the transaction was completed. Jose Tovar told the agents that
he would provide the sixth weapon at no charge along with a free rifle
magazine. Agents later learned that both Tovar brothers had previously been
convicted of violent felonies. The agents were able to trace four of the weapons
to Jerry Tovar and one of the weapons to Jose Tovar. They were unable to
trace ownership for the remaining weapon.
       A few days later, state law enforcement officers in Hidalgo County, Texas
arrested Francisco Alvarado for possession of marijuana. He told police that


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he had stored 102.6 kilograms in his apartment for an individual that he had
met at a pool hall. He had received instructions from an unidentified person
to pick up a Ford vehicle loaded with marijuana and to transport the marijuana
back to his apartment. Alvarado had been instructed to deliver the marijuana
to a ranch in Edinburg, Texas, where he met Jose Tovar, whom he called “The
Boss.” Tovar paid him $200 and asked him to leave. He identified Jose Tovar
in a photographic lineup.
      On May 21, 2012, federal agents established surveillance of the expected
staged traffic stops. They observed Deputy Silva and another deputy in the
Duval County Sheriff’s Office pull over two vehicles and pretend to remove ten
kilograms of cocaine.   The deputies also removed $5,000 from one of the
vehicles, which Deputy Silva had previously requested as a fee.
      On May 23, agents obtained arrest warrants for both of the Tovar
brothers on charges that they were felons in possession of firearms. The
following day, federal agents arrested Jerry Tovar after making a controlled
delivery to him of six kilograms of cocaine. After agents found and seized nine
firearms from Jerry Tovar’s residence, he admitted that he had previously sold
six weapons to an unknown male for $8,600, but asserted that he had received
only $600 from the sale. He also confirmed that Deputy Silva had assisted him
and Jose Tovar in stealing narcotics loads for about ten months and that
Deputy Silva had a crew who staged the traffic stops. He corroborated reports
that instead of transporting the drugs, Jose Tovar stored them in undisclosed
areas throughout the Rio Grande Valley. Jerry Tovar related that his brother
paid Silva between $6,000 and $10,000 per stop which he would divide up
among his crew. On two occasions, Jose Tovar directed him to pick up false
police reports that had been faxed by Deputy Silva.




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      On the same day, federal officers executed an arrest warrant for Jose
Tovar. A search of Jose Tovar’s two residences revealed two weapons, a large
number of rounds of different types of ammunition, a firearms cleaning kit, a
magazine speed loader, and $2,000 in a safe. Jose Tovar told police in his post-
arrest statement that he was operating a legitimate trucking business and that
he was working undercover with Deputy Silva. He stated that the weapons
found at his residences belonged to a third party and that he gave the other
weapons to someone because he owed him $5,000.
      Victor Carrillo, one of the local deputies suspected of assisting Deputy
Silva, was also arrested. He admitted in his post-arrest statements that he
had participated with Silva and other deputies in conducting staged traffic
stops to facilitate the theft of large quantities of drugs. He advised that Silva
paid him between $1,000 and $1,500 each time he assisted in a staged traffic
stop. He reported that Jose Tovar provided Silva with the money. Police also
stopped a vehicle driven by Galindo, who told agents that he had been
employed by Jose Tovar as a driver and to maintain the vehicles. He denied,
however, participating in a drug trafficking operation.
      On June 19, 2012, an indictment was filed against Jose Tovar for two
counts of unlawful possession of firearms under 18 U.S.C. §§ 922(g) and
924(a)(2); Jerry Tovar for one count of unlawful possession of firearms under
18 U.S.C. §§ 922(g) and 924(a)(2); Jerry Tovar, Silva, and Carrillo for
conspiring to possess with intent to distribute a controlled substance under 21
U.S.C. §§ 841(a)(1) and (b)(1)(A), and 846; and Jerry Tovar for one count of
unlawful possession of a controlled substance under 21 U.S.C. § 841(a)(1) and
(b)(1)(A).
      Jose Tovar pleaded guilty, without a plea agreement, to two counts of
unlawful possession of firearms. The PSR recommended that Tovar receive a


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base offense level of 22 and 12 additional levels based on specific offense
characteristics, resulting in a total offense level of 37. Tovar also received one
criminal history point, placing him in criminal history category I.          The
Sentencing Guidelines range for each offense was 210–262 months; however,
the statutory maximum sentence for each count was 120 months.
      Jose Tovar filed several objections to the PSR. The only objection at issue
in this appeal is his challenge to a three-level upward adjustment pursuant to
§ 3B1.1(b) based on his role as a manager or supervisor of criminal activity
that involved five or more participants or was otherwise extensive. Jose Tovar
denied the assertion that he was involved in the narcotics transaction for which
his codefendants were charged, and asserted that his condominiums were
purchased with money from real estate that he had previously sold. He pointed
out that, unlike his codefendants, he had not been charged with any drug
offenses. Jose Tovar also asserted that his brother was the one who had sold
the weapons. He noted that ownership of only one of the weapons had been
traced to him and that discovery showed the weapons had been buried at Jerry
Tovar’s home.
      The probation officer responded, acknowledging that although the
evidence showed that Jose Tovar was the owner of a trucking company, two
condominiums, and a ranch that he used to facilitate the transportation and
distribution of narcotics, he was not charged with any drug crimes.          The
probation officer stated that Jose Tovar’s criminal activities were otherwise
extensive, however, because he was involved in selling weapons. The probation
officer further stated that Jose Tovar had directed Jerry Tovar and Galindo
during a firearms sale.
      During the sentencing hearing, Jose Tovar’s counsel reiterated his
argument that Jerry Tovar was the actual owner of most of the weapons and


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was responsible for their sale. Jose Tovar’s counsel further argued that the
fact that Tovar’s codefendants were charged with drug offenses, while he was
not charged, showed his lack of involvement in that criminal activity. He
contended that this supported finding that Jose Tovar did not have a
managerial role in the offense. During his allocution, Jose Tovar denied selling
any guns and emphasized that there had been no charges filed against him
involving drugs. The Government responded that Jose Tovar was the head of
the entire organization and that, although he was not involved in the
conspiracy to distribute cocaine alleged in the indictment, he was involved in
the theft of drugs from drug traffickers on multiple occasions in addition to the
sale of weapons.
      The district court overruled the objection. It determined that Jose Tovar
used his trucking company and condominiums as part of the overall
organization that sold firearms, and adopted the PSR.        The district court
imposed a sentence of 120 months on each count to be served consecutively in
part and concurrently in part such that the total term of incarceration would
be 210 months. Jose Tovar timely appeals the assessment of a managerial role
enhancement.
                      II.    STANDARD OF REVIEW
      In reviewing a sentence, we must ensure that the sentencing court
“committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range . . . , [or] selecting a sentence
based on clearly erroneous facts.” Gall v. United States, 552 U.S. 38, 51 (2007).
We review for clear error the district court’s factual findings underlying its
decision to apply a Guidelines enhancement and review de novo the application
and interpretation of the Guidelines. United States v. Cisneros–Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008). We will affirm the district court’s application of


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the managerial role enhancement if it is plausible in light of the record read as
a whole. See United States v. Nava, 624 F.3d 226, 229 (5th Cir. 2010). We will
reverse “only if, based on the entire evidence, [we are] left with the definite and
firm conviction that a mistake has been committed.” United States v. Rose,
449 F.3d 627, 633 (5th Cir. 2006) (quotation marks and citation omitted).
                                  III.    DISCUSSION
       Jose Tovar appeals the district court’s three-level enhancement to his
sentence for his alleged role as a manager or supervisor, pursuant to the
United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3B1.1(b).                         An
increase to a defender’s offense level is warranted “[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise extensive[.]”
U.S.S.G. § 3B1.1(b) (2012). The managerial role enhancement consists of two
elements. The first element is that a “defendant must have been the . . .
manager . . . or supervisor of one or more other participants.” Id. § 3B1.1 cmt.
n.2. The second is that the relevant criminal activity must have involved five
or more participants or have been “otherwise extensive.” Id. § 3B1.1(b).
       Jose Tovar’s only challenges on appeal are to the district court’s finding
that the facts in the PSR were sufficient to satisfy the first element—that he
was a manager or supervisor of at least one other participant in the relevant
criminal activity. 1 The “defendant bears the burden of demonstrating that the
PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court
may properly rely on the PSR and adopt it.” United States v. Ollison, 555 F.3d
152, 164 (5th Cir. 2009) (quotation marks and citation omitted). “Rebuttal


       1 Because Jose Tovar did not challenge in either the district court or on appeal whether
the relevant criminal activity involved at least five participants or was “otherwise extensive,”
that issue is not before us. See United States v. Whitfield, 590 F.3d 325, 346 (5th Cir. 2009)
(“As a general rule, a party waives any argument that it fails to brief on appeal.”).

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evidence must consist of more than a defendant’s objection; it requires a
demonstration that the information is materially untrue, inaccurate or
unreliable.”   United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013)
(quotation marks and citation omitted).
      The Guidelines’ commentary provides that a court should consider the
following factors in distinguishing a leadership and organizational role (to
which a four-level enhancement applies) from a managerial or supervisory role
(to which a three-level enhancement applies):
      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, the nature and scope of the illegal activity, and the degree
      of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. Our circuit (and others) have also frequently used
these factors to determine whether a participant in a criminal activity
exercised a managerial or supervisory role or a lesser role. See, e.g., United
States v. Reagan, 725 F.3d 471, 494 (5th Cir. 2013); United States v. Otuya, 720
F.3d 183, 192 (4th Cir. 2013); United States v. Hoffman, 707 F.3d 929, 935 (8th
Cir. 2013); United States v. Miranda, 248 F.3d 434, 447 (5th Cir. 2001). A court
may find that a defendant exercised a managerial role by inference from the
available facts. United States v. Valdez, 453 F.3d 252, 263 (5th Cir. 2006).
      Viewing the evidence in light of the applicable Guidelines factors, we are
not left with a definite and firm conviction that the district court clearly erred
in concluding that the preponderance of the evidence showed Jose Tovar
managed Jerry Tovar, Galindo, or both during the relevant criminal activity.
The PSR contains the following uncontested facts.          While meeting with
undercover federal agents, Jose Tovar proposed the sale of five firearms. He
later also negotiated the purchase price and provided a source with pictures of


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the weapons. The source subsequently viewed the weapons at Jose Tovar’s
apartment. On the date of the sale, Jerry Tovar and Galindo met with federal
agents to view the purchase cash and then were observed driving in the
direction of Jose Tovar’s apartment. During the sale, Jose Tovar agreed to
provide the buyers with a sixth weapon and ammunition free of charge. Later,
when questioned at his home after additional weapons were found there, Jerry
Tovar informed agents that he received only a small cut of the sale price of the
six firearms. Galindo also told federal agents that he was one of Jose Tovar’s
employees. Galindo stated that in that capacity, he was in charge of vehicle
maintenance for Jose Tovar’s trucking company and performed other
miscellaneous errands for him. Given these facts, several of the Guidelines
factors weigh in favor of an enhancement, including Jose Tovar’s recruitment
of Galindo, his receipt of a larger share of the proceeds from the gun sale, his
exercise of decision-making authority (such as by proposing the sale and
deciding the sale price of the weapons), and the degree of control and authority
he exercised over Jerry Tovar and Galindo.
       Jose Tovar contends that other facts suggest that it was Jerry Tovar who
was responsible for the firearms sales.           Jose Tovar asserts that the PSR
indicated that all three men—Jose Tovar, Jerry Tovar, and Galindo—
negotiated the purchase of the weapons. This is incorrect; the PSR states that
Jose Tovar “provided the [source with] photographs of the weapons and the two
negotiated the purchase fee of said weapons.” Jose Tovar also points out that
four of the six weapons being sold were owned by Jerry Tovar and that the
weapons had been buried at Jerry Tovar’s house. 2 The fact that Jerry Tovar


       2Jose Tovar’s argument appears to be, in part, that he should be sentenced only for
the weapon he owned rather than for all six of the weapons that were sold (which also
included four weapons that were owned by Jerry Tovar and one that could not be traced).
This argument is foreclosed by Jose Tovar’s guilty plea, in which he acknowledged possession

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also had possession of the firearms, however, does not rebut the evidence
suggesting that Jose Tovar had a managerial or supervisory role over the
firearms sale.
       Jose Tovar also argues that in determining that a managerial role
enhancement applies, the district court incorrectly considered his role in the
uncharged narcotics conduct. We distinguish the argument he made in the
district court and in his original brief on appeal from the argument he makes
in his reply brief. In the district court and his original brief, he argued that
there was insufficient evidence to support his involvement in the drug activity
and that the fact that he was not indicted for a drug offense shows that he
could not have been a supervisor in the overall organization. In his reply brief,
however, he also argues that because the drug trafficking conspiracy was
separate from the underlying offense of selling or possessing weapons, it was
error under the Guidelines to consider drug activity as part of his conduct
relevant to sentencing. Because this latter argument was not raised until his
reply brief, it is waived, and we do not address it here. See In re Katrina Canal
Breaches Litig., 620 F.3d 455, 459 n.3 (5th Cir. 2010) (holding that arguments
not presented in an appellant’s opening brief are waived).
       Turning to Jose Tovar’s argument that there was insufficient support of
his involvement in the uncharged narcotics conduct, we note initially that, as
stated above, the evidence directly relating to Jose Tovar’s involvement in the
firearms sale was sufficient to apply a managerial role enhancement. In any
event, we also conclude that there was sufficient evidence to find that he was




of all six of the sale weapons, as well as two other weapons that were seized from his home.
See United States v. Flores-Sandoval, 94 F.3d 346, 349 (7th Cir. 1996) (holding in the context
of a sentencing enhancement challenge that “by stipulating to the conduct in the plea
agreement, [the defendant] has waived any claim that he did not engage in that conduct”).


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involved in the uncharged narcotics activity. We give little weight to Jose
Tovar’s argument that the decision not to charge him with a drug crime shows
that he did not break any drug laws. In contrast to a criminal prosecution, the
government need only prove uncharged conduct at sentencing by a
preponderance of the evidence. Cf. United States v. Faust, 456 F.3d 1342, 1347
(11th Cir. 2006) (“[R]elevant conduct of which a defendant was acquitted
nonetheless may be taken into account in sentencing for the offense of
conviction, as long as the government proves the acquitted conduct relied upon
by a preponderance of the evidence.” (quotation marks and citation omitted)).
Jose Tovar also asserts that he purchased his condominiums and trucking
business using legitimate assets. But even taking this as true, it does not rebut
the facts showing that he used his property for criminal ends. Furthermore,
Tovar’s “unsworn and self-serving denial of the allegations contained in the
PSR at the sentencing hearing is not competent rebuttal evidence.” United
States v. Thompson, 325 F. App’x 365, 366 (5th Cir. 2009). Accordingly, Jose
Tovar has failed to present or point to any evidence rebutting the extensive
facts in the PSR implicating him in narcotics trafficking and demonstrating
that he played a managerial role in the overall narcotics and weapons
trafficking organization.
      Lastly, Jose Tovar argues that the district court erred in adopting the
facts in the PSR because those facts lack sufficient indicia of reliability. He
contends that the statements in the PSR identifying him as a leader of a drug-
trafficking organization and director of the actions of Jerry Tovar, Galindo,
Silva, and Carrillo were conclusory findings based on the unsworn statements
of agents and, thus, were not supported by reliable evidence. We have held
that a district court may adopt the facts contained in a PSR without further
inquiry “if those facts have an adequate evidentiary basis with sufficient


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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. Cabrera, 288 F.3d 163, 173–74 (5th Cir. 2002). “Bald, conclusionary
statements,” however, are not sufficiently reliable. Zuniga, 720 F.3d at 591
(quotation marks and citation omitted).
      As support for his argument, Jose Tovar cites United States v. Elwood,
999 F.2d 814 (5th Cir. 1993), a decision holding that a PSR that “merely gave
a recitation of the conclusions of the DEA and the prosecutor,” and was entirely
devoid of relevant facts, could not justify a managerial role enhancement. Id.
at 817. Elwood is distinguishable, however, because the PSR in this case
includes specific facts, supplied by federal agents, codefendants, unindicted
coconspirators, and other sources supporting the conclusion that Jose Tovar
supervised or managed at least one other participant in his schemes to possess
and sell firearms. See United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991)
(holding that a “district court may properly find sufficient reliability on a
presentence investigation report which is based on the results of a police
investigation”). Jose Tovar has not demonstrated that the facts in the PSR are
unreliable.
      In sum, we find that Jose Tovar has not shown that the district court
clearly erred in finding under U.S.S.G. § 3B1.1(b) that he was a manager or
supervisor of at least one other participant in the relevant criminal conduct.
We also find that he waived any challenge that the relevant criminal activity
did not involve five or more participants or was not otherwise extensive.
                            IV.    CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s sentence.




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