     Case: 12-10483       Document: 00512215999         Page: 1     Date Filed: 04/22/2013




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

                                                                            FILED
                                                                           April 22, 2013
                                     No. 12-10483
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

AGUSTEN DIAZ, also known as Popeye,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-180-2


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Agusten Diaz appeals the 480-month sentence imposed following his guilty
plea conviction of conspiracy to distribute and to possess with intent to distribute
100 grams or more of heroin. He argues that the district court improperly
calculated his guidelines range by (1) denying him a two-level reduction
pursuant to U.S.S.G. § 3E1.1 based on acceptance of responsibility, (2) applying
a two-level adjustment pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a
dangerous weapon during the offense, and (3) applying a four-level adjustment

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                   No. 12-10483

pursuant to U.S.S.G. § 3B1.1(a) based on a finding that he was a leader or
organizer of the criminal activity. Diaz also argues that the district court erred
by finding that he was a member of the Tango Blast gang.
      The “district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, and its factual findings are reviewed for clear
error.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(internal quotation marks, ellipsis, and citation omitted). “There is no clear
error if the district court’s finding is plausible in light of the record as a whole.”
Id. (internal quotation marks and citation omitted).
      “While the district court’s findings under the sentencing guidelines are
generally reviewed for clear error, a determination whether a defendant is
entitled to an adjustment for acceptance of responsibility is reviewed with even
greater deference.” United States v. Buchanan, 485 F.3d 274, 287 (5th Cir.
2007). This court “will affirm a sentencing court’s decision not to award a
reduction” pursuant to § 3E1.1 unless the decision is “without foundation.”
United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal
quotation marks and citation omitted). Because the trial court’s determination
concerning the adjustment for acceptance of responsibility depends heavily upon
credibility assessments, the judgment of the district court will “nearly always”
be sustained. United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996).
      The presentence report (PSR) and PSR Addendum provided credible
evidence that Diaz denied relevant conduct during his presentence interview.
The district court’s decision to adopt the probation officer’s version of the facts
surrounding Diaz’s presentence interview over Diaz’s version was implicitly
based upon a credibility determination, which this court will not disturb. See
Spires, 79 F.3d at 467. In light of the information contained in the PSR and PSR
Addendum, the district court’s finding that Diaz falsely denied and frivolously
contested his relevant conduct is not without foundation. See Juarez-Duarte,
513 F.3d at 211.

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      Section 2D1.1(b)(1) provides that the base offense level of a defendant
convicted of certain drug-related offenses should be increased by two levels “[i]f
a dangerous weapon (including a firearm) was possessed.” “The adjustment
should be applied if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.” § 2D1.1, comment. (n.3); see United
States v. Mitchell, 31 F.3d 271, 277 (5th Cir. 1994). The Government may
establish a connection between the weapon and the offense “by showing that the
weapon was found in the same location where drugs or drug paraphernalia are
stored or where part of the transaction occurred.” United States v. Flucas, 99
F.3d 177, 179 (5th Cir. 1996). However, “[i]t is not necessary for possession of
the weapon to play an integral role in the offense.” United States v. Villarreal,
920 F.2d 1218, 1221 (5th Cir. 1991). It is sufficient to show “that a temporal and
spatial relation existed between the weapon, the drug trafficking activity, and
the defendant.” United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991).
“This court has determined that access to, and not ownership of, the dangerous
weapon must be established; even if the defendant did not intend to use the
weapon, it suffices that the weapon could have been used.” United States v.
Vital, 68 F.3d 114, 120 (5th Cir. 1995); see Mitchell, 31 F.3d at 278.
      “The district court’s determination that § 2D1.1(b)(1) applies is a factual
finding reviewed for clear error.” United States v. Ruiz, 621 F.3d 390, 396 (5th
Cir. 2010). A factual finding is not clearly erroneous if it is plausible in light of
the record as a whole. Id.
      The PSR and PSR Addendum established that the firearm was found in
a limousine owned and used by Diaz along with drug proceeds, drug ledgers, and
cell phones containing text messages indicative of drug trafficking. The facts set
forth in the PSR were sufficient to show that it was not clearly improbable that
the weapon was connected with the offense. See § 2D1.1, comment. (n.3).
Accordingly, Diaz has failed to show that the district court clearly erred by
applying the adjustment. See Ruiz, 621 F.3d at 396.

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      Under § 3B1.1(a), a defendant’s offense level should be increased by four
levels “[i]f the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” “The defendant
need not have supervised each and every coconspirator:             Proof that the
defendant supervised only one other culpable participant is sufficient to make
the defendant eligible for the enhancement.” United States v. Curtis, 635 F.3d
704, 720 (5th Cir. 2011) (internal quotation marks and footnote omitted).
      Whether a defendant is an organizer or leader under § 3B1.1(a) is a factual
determination that this court reviews for clear error. United States v. Cabrera,
288 F.3d 163, 173 (5th Cir. 2002). This court will uphold a district court’s factual
finding on clear error review so long as the finding is plausible in light of the
record as a whole. United States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006).
      Diaz does not dispute that the criminal activity involved more than five
participants or was otherwise extensive, and the facts establish that the
conspiracy involved more than five people. Diaz also does not dispute that he
managed and directed at least two individuals involved in the conspiracy. Based
on these facts, Diaz was eligible for the four-level adjustment. See Curtis, 635
F.3d at 720. Accordingly, the district court did not clearly err by finding that
Diaz was a leader or organizer of the conspiracy. See Cabrera, 288 F.3d at 173.
      The district court’s finding that Diaz is a member of the Tango Blast gang
is reviewed for clear error. See Cisneros-Gutierrez, 517 F.3d at 764. “Generally,
a PSR bears sufficient indicia of reliability to permit the sentencing court to rely
on it at sentencing. 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) (internal quotation marks and citation omitted); United
States v. Valles, 484 F.3d 745, 759 (5th Cir. 2007). “Such rebuttal evidence must
demonstrate that the PSR information is materially untrue, inaccurate or
unreliable.” United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998) (internal

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quotation marks and citation omitted). “Mere objections do not suffice as
competent rebuttal evidence.” Id.
      The PSR and PSR Addendum identified Diaz as a member of the Tango
Blast gang based on information obtained from a codefendant.                The
codefendant’s information was deemed to be reliable. Although Diaz objected to
the information, he did not produce any evidence to establish that this
information was unreliable or false. See Parker, 133 F.3d at 329. Therefore, the
district court properly relied upon the information contained in the PSR and
adopted it. See Ollison, 555 F.3d at 164. In light of the information contained
in the PSR, the district court did not clearly err by finding that Diaz was a
member of the Tango Blast gang. See Cisneros-Gutierrez, 517 F.3d at 764.
Accordingly, the judgment is AFFIRMED.




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