     Case: 10-10558 Document: 00511500911 Page: 1 Date Filed: 06/07/2011




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

                                                 FILED
                                                                            June 7, 2011
                                     No. 10-10558
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SALVADOR MANUEL GARCIA-COVARRUBIAS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-122-2


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Salvador Manuel Garcia-Covarrubias (Garcia) pleaded guilty without
benefit of a written plea agreement to possession with intent to distribute more
than 500 grams of cocaine, and the district court sentenced him to 121 months
of imprisonment. Although he argues that the district court erred in denying his
motion to suppress cocaine discovered in his vehicle, “[a] plea of guilty admits all
the elements of a formal criminal charge and waives all non-jurisdictional
defects in the proceedings leading to conviction,” including “objections to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10558

searches and seizures that violate the Fourth Amendment.” United States v.
Cothran, 302 F.3d 279, 285-86 (5th Cir. 2002) (internal quotation marks and
citation omitted). Accordingly, we refuse to consider this argument. See also
United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007) (“[T]his court may affirm
the district court’s judgment on any basis supported by the record.” (internal
quotation marks and citation omitted)).
      Garcia challenges the district court’s calculation of his guideline range of
imprisonment. Cf. Gall v. United States, 552 U.S. 38, 51 (2007) (distinguishing
procedural soundness and substantive reasonableness). We review the district
court’s interpretation and application of the Sentencing Guidelines de novo and
its findings of fact for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). “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).
      First, Garcia contends that the district court erred in applying a two-level
enhancement for obstruction of justice. The district court’s determination that
a defendant obstructed justice under U.S.S.G. § 3C1.1 is a factual finding that
we review for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th
Cir. 2008). In addition, we give deference to the credibility determinations of the
district court. Id. In this case, the district court applied the enhancement based
on a finding that Garcia committed perjury during the suppression hearing.
Although the police officer who stopped and searched Garcia’s vehicle testified
that Garcia conversed with him and consented in English to the search of the
car, Garcia testified that he did not speak English, could not understand the
police officer who stopped him, and never gave consent to the search of his
vehicle. At the end of the hearing, the district court noted that Garcia had
answered questions that were posed to him in English before the interpretation
was made on three separate occasions during the hearing, and the court found
his testimony “incredible.” The district court’s finding that Garcia committed

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perjury in an attempt to obstruct his prosecution is “plausible in light of the
record as a whole.” Cisneros-Gutierrez, 517 F.3d at 764 (internal quotation
marks and citation omitted).
      Second, Garcia argues that he should only have been held accountable for
the two kilograms of cocaine that he actually delivered instead of the six
kilograms of cocaine that he had agreed to deliver in installments.           The
commentary to U.S.S.G. § 2D1.1 provides that “quantities of drugs not specified
in the count of conviction may be considered in determining the offense level.”
§ 2D1.1 comment., (n.12) (citing U.S.S.G. § 1B1.3(a)(2) (Relevant Conduct)).
Accordingly, we have held that “the base offense level can reflect quantities of
drugs not specified in the count of conviction if they were part of the same course
of conduct or part of a common scheme or plan as the count of conviction.”
United States v. Wall, 180 F.3d 641, 644 (5th Cir. 1999) (internal quotation
marks and citation omitted). The district court’s determination of the quantity
of drugs attributable to a defendant for purposes of § 2D1.1 is a factual finding
that we review for clear error. United States v. Betancourt, 422 F.3d 240, 246
(5th Cir. 2005).
      Here, the presentence report (PSR) states that one of Garcia’s co-
defendants told the confidential source that she had contacts who could supply
up to six kilograms of cocaine at a time and then put the confidential source in
contact with Garcia. Garcia does not dispute the PSR’s statement that he then
agreed to deliver a total of six kilograms of cocaine in three-kilogram
installments. A district court may rely on the information in a PSR in the
absence of rebuttal evidence, United States v. Ollison, 555 F.3d 152, 164 (5th Cir.
2009), and mere objections do not suffice as competent rebuttal evidence. United
States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). Although Garcia only
delivered two kilograms of cocaine in the first installment instead of three as he
had previously agreed, Garcia pointed to no evidence at the sentencing hearing
to rebut the PSR’s finding that his offense involved six kilograms of cocaine.

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      He points to application note 12 to § 2D1.1, which provides that “[i]n 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 the sale is completed and the amount delivered more accurately reflects
the scale of the offense.” § 2D1.1, comment. (n.12). However, although he
contends that the “the amount delivered more accurately reflects the scale of the
offense,” id., he pointed to nothing in the district court to support that assertion.
Moreover, the commentary states that “[i]f, however, the defendant establishes
that the defendant did not intend to provide . . . or was not reasonably capable
of providing . . . the agreed-upon quantity of the controlled substance, the court
shall exclude from the offense level determination the amount of controlled
substance that the defendant establishes” he could not reasonably or did not
intend to provide. Id. (emphasis added). He now cites to the reduction of his co-
defendant’s drug quantity based on an assertion by her attorney that an
investigator suspected that the defendants could not have delivered all six
kilograms of cocaine. However, he never submitted this evidence to the district
court but simply asserted at the sentencing hearing that his co-defendant was
held accountable for a lower drug quantity.
      Thus, Garcia failed to establish that he could not deliver all six kilograms
under application note 12 to § 2D1.1, and he failed to adduce any evidence in the
district court to rebut the PSR’s drug quantity calculation. See Parker, 133 F.3d
at 329. The district court’s finding that the offense involved six kilograms of
cocaine is “plausible in light of the record as a whole.” Cisneros-Gutierrez,
517 F.3d at 764 (internal quotation marks and citation omitted).
      AFFIRMED.




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