     Case: 10-50701 Document: 00511489200 Page: 1 Date Filed: 05/25/2011




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

                                                 FILED
                                                                            May 25, 2011
                                     No. 10-50701
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GREGORY WAYNE ANDERSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:10-CR-669-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Gregory Wayne Anderson appeals his sentence to concurrent 57-month
prison terms for his guilty plea convictions for one count of importing marijuana
into the United States from Mexico in violation of 21 U.S.C. § 952(a) and one
count of possessing with intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1). The district court held him accountable for less than 100 kilograms
of marijuana and sentenced him at the bottom of the resulting guideline range.
Anderson challenges the drug quantity calculated by the district court, arguing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50701 Document: 00511489200 Page: 2 Date Filed: 05/25/2011

                                  No. 10-50701

that there was insufficient evidence that he made a previous drug delivery to
Colorado and regarding the type or amount of drugs he reportedly delivered at
that time.
      We give considerable deference to the district court’s factual findings, such
as the quantity of drugs attributable to a defendant for purposes of U.S.S.G.
§ 2D1.1, reversing them only if they are clearly erroneous. United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). A district court may rely on the
information in a presentence report (PSR) in the absence of rebuttal evidence.
United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). “Mere objections do
not suffice as competent rebuttal evidence.” United States v. Parker, 133 F.3d
322, 329 (5th Cir. 1998). Anderson offered nothing more than his unsworn
assertions through counsel disputing the PSR’s account of what he told federal
agents regarding his earlier drug delivery. He failed to rebut the PSR’s account,
which was corroborated by a receipt and by border crossing records. See id.
Because the two trips occurred within a five-day period and involved Anderson
driving the same vehicle into El Paso and then to Colorado in order to deliver
drugs in exchange for cash, the district court did not clearly err in finding that
they constituted part of a common scheme or plan. See United States v. Wall,
180 F.3d 641, 644-45 (5th Cir. 1999); § 2D1.1 comment., (n.12); U.S.S.G. § 1B1.3,
comment. (n.9(A).
      In addition, the district court used a conservative estimate of the combined
weight of the drugs that Anderson delivered. The similarity of the two crossings
supports the district court’s inference that a similar amount of drugs was
involved in each case. See United States v. Medina, 161 F.3d 867, 875-77 (5th
Cir. 1998). The district court’s calculation of the amount of drugs is plausible in
light of the record as a whole. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
      AFFIRMED.



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