     Case: 16-40150      Document: 00513685168         Page: 1    Date Filed: 09/20/2016




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

                                    No. 16-40150                                FILED
                                  Summary Calendar                      September 20, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BENITO ALANIZ, SR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-317-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Benito Alaniz, Sr., appeals his 120-month prison sentence following his
guilty-plea conviction for conspiring to possess with the intent to distribute
more than 100 kilograms of marijuana. Alaniz contends that the district court
clearly erred in determining that he was an organizer, leader, manager, or
supervisor of one or more other participants in the criminal activity and thus




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40150    Document: 00513685168     Page: 2   Date Filed: 09/20/2016


                                 No. 16-40150

subject to a two-level aggravating role enhancement under U.S.S.G. § 3B1.1(c).
See § 3B1.1, comment. (n.2).
      “Whether a defendant exercised an aggravating role as an organizer,
leader, manager, or supervisor for purposes of an adjustment under [§ 3B1.1(c)]
is a finding of fact reviewed for clear error.” United States v. Ochoa-Gomez,
777 F.3d 278, 281 (5th Cir. 2015). In making factual findings for sentencing
purposes, the district court may consider any evidence bearing sufficient
indicia of reliability to support its probable accuracy, such as a presentence
report (PSR). United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010). If the
defendant takes issue with the PSR as evidence, he has “the burden of showing
that the information in the [PSR] is materially untrue.” Id.
      Here, the district court adopted the PSR’s factual finding that Alaniz was
an organizer, leader, manager, or supervisor of the criminal activity. Alaniz
challenged the PSR’s determination by contending that other conspirators
served as the leaders and organizers with respect to a specific marijuana
smuggling offense alleged in a dismissed count of the indictment. Because
more than one person may occupy a leadership or managerial role within a
criminal association, Alaniz’s assertion does not bar him from qualifying as a
leader or organizer with respect to the criminal conspiracy. See § 3B1.1(c),
comment. (n.4). Moreover, Alaniz admitted at sentencing that he recruited
Sergio Gonzalez-Ruiz to participate in the conspiracy, and he did not refute the
PSR’s remaining findings that he recruited his son and Marcelino Mireles, Jr.,
generally exercised managerial authority over all three co-conspirators,
exercised decision-making authority within the conspiracy, organized the
smuggling events, and claimed a larger share of the smuggling payments.
      In any event, Alaniz’s unsworn assertions at the sentencing hearing are
insufficiently reliable to be considered rebuttal evidence. See United States v.



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                                 No. 16-40150

Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992). Alaniz has thus failed to carry
his burden of establishing that the PSR’s information is materially untrue. See
Nava, 624 F.3d at 231. Accordingly, the district court did not clearly err in
adopting the PSR’s unrebutted factual finding that he was an organizer,
leader, manager, or supervisor of the criminal activity for purposes of
§ 3B1.1(c)’s two-level aggravating role enhancement. See United States v.
Vital, 68 F.3d 114, 120 (5th Cir. 1995) (holding that a district court’s reliance
on the facts set forth in a PSR will not constitute clear error if the defendant
did not submit rebuttal evidence supporting his objection). The judgment of
the district court is AFFIRMED.




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