     Case: 09-10283     Document: 00511015335          Page: 1    Date Filed: 01/28/2010




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

                                                  FILED
                                                                          January 28, 2010
                                     No. 09-10283
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE MARTINEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-159-3


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jose Martinez appeals his 235-month sentence, imposed following his
guilty-plea conviction for conspiracy to possess with intent to distribute 500
grams or more of cocaine. Martinez contends the district court erred: in its drug-
quantity determination; in applying an obstruction-of-justice enhancement; and,
in denying an acceptance-of-responsibility reduction.
        Although post-Booker (2005), the Guidelines are advisory only, and an
ultimate sentence is reviewed for reasonableness under an abuse-of-discretion

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10283

standard, the district court must still properly calculate the guideline-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 128
S. Ct. 586, 596 (2007). In that respect, its application of the guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
      Martinez maintains the district court erred in its drug-quantity
determination because it included the three kilograms of cocaine he allegedly
offered “to front” for an undercover officer. He asserts that an insufficient
evidentiary basis existed for this finding because he challenged the findings
provided in the presentence investigation report (PSR), and the district court did
not require the Government to present further evidence.                Martinez also
maintains the district court should not have included the three kilograms of
cocaine because there was no evidence the undercover officer and Martinez
agreed to a transaction regarding them.
      The district court’s reliance on          the PSR      for its drug-quantity
determination is a finding of fact, and, therefore, as noted, review is only for
clear error. United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001). A finding
of fact is not clearly erroroneous if “the evidence is plausible in light of the record
viewed in its entirety”. United States v. Charon, 442 F.3d 881, 891 (5th Cir.
2006) (quoting United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005)).
      “Facts contained in a PSR are considered reliable and may be adopted
without further inquiry if the defendant fails to present competent rebuttal
evidence.” United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998) (citing
United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994)). A defendant’s
rebuttal evidence “must demonstrate that the PSR information is materially
untrue, inaccurate or unreliable. Mere objections do not suffice as competent
rebuttal evidence”. Id. (internal quotations and citation omitted).



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                                 No. 09-10283

      The PSR contained information showing Martinez offered to front an
undercover officer up to three kilograms of cocaine. Martinez also admitted
there was an audio recording on which he stated: if the cocaine transaction (that
led to his conviction) went well, the undercover officer could get two or three
kilograms more from Martinez’ supplier.
      Martinez’ contention that the offer was insufficient to show an agreement
also fails. “In an offense involving an agreement to sell a controlled substance,
the agreed-upon quantity of the controlled substance shall be used to determine
the offense level” unless, inter alia, defendant establishes he did not intend to
provide or purchase the agreed-upon amount or was not reasonably capable of
providing it. U.S.S.G. § 2D1.1 cmt. n.12.
      Martinez not having presented evidence showing the information
contained in the PSR was untrue or unreliable, the district court was entitled to
rely upon that information. See Parker, 133 F.3d at 329. Accordingly, the
district court did not clearly error by adopting the facts found in the PSR and
finding that Martinez offered to provide three kilograms of cocaine to an
undercover officer. See id.
      Regarding Martinez’ claim that the district court erred by applying an
obstruction-of-justice enhancement and denying an acceptance-of-responsibility
reduction, the district court based its rulings on its factual finding that Martinez
threatened co-defendant Arreguin. Martinez, however, maintains the court’s
finding that the threats were made with the intent to discourage Arreguin from
cooperating with the Government was not supported by sufficient evidence.
Martinez’s sole challenge to the denial of an acceptance-of-responsibility
reduction is his contention that the district court should not have applied an
obstruction-of-justice enhancement. Accordingly, at issue is whether the district
court clearly erred by finding Martinez obstructed justice, thus warranting both
the obstruction-of-justice enhancement and the denial an acceptance-of-
responsibility reduction. See U.S.S.G. § 3E1.1 cmt. n.4.

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      The PSR stated Arreguin told law enforcement officials that Martinez and
another co-defendant, after they were arrested, had threatened him and his
family. Although the evidence that Martinez threatened Arreguin was based on
Arreguin’s statements, Martinez did not present evidence to rebut that finding
in the PSR. Accordingly, the district court could rely upon the information in the
PSR to find Martinez threatened Arreguin. See United States v. Shipley, 963
F.2d 56, 59 (5th Cir. 1992). The district court also made a “reasonable inference”
that the threats made against Arreguin were motivated by a desire to discourage
Arreguin from providing further cooperation to law enforcement officials. See
United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir. 1990) (holding that
district court may make reasonable inferences from facts). Therefore, Martinez
has not shown the district court clearly erred by making the inference that he
obstructed justice by threatening Arreguin. See id.
      AFFIRMED.




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