Case: 12-50643 Document: 00512317211 Page: 1 Date Filed: 07/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2013
No. 12-50643
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERTO CARDONA GUILLEN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-2578-2
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Roberto Cardona Guillen pleaded guilty to importing a controlled
substance, conspiracy to import a controlled substance, possession with the
intent to distribute a controlled substance, and conspiracy to possess with the
intent to distribute a controlled substance. Based on information obtained
during the debriefing of Cardona Guillen’s wife, a coconspirator, the
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-50643 Document: 00512317211 Page: 2 Date Filed: 07/23/2013
No. 12-50643
presentence report (PSR) recommended holding Cardona Guillen responsible
for 24.75 kilograms of cocaine for sentencing purposes.
Cardona Guillen argues on appeal that the district court erred in
concluding that the PSR’s drug quantity determination was supported by a
preponderance of the evidence. We review the district court’s determination
of drug quantity for clear error and will affirm the finding as long as it is
“plausible in light of the record as a whole.” United States v. Betancourt, 422
F.3d 240, 246 (5th Cir. 2005) (internal quotation marks and citations omitted).
A district court may determine drug amounts for sentencing purposes provided
the finding is based on reliable evidence, such as the PSR. See id.; United
States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998). The defendant bears the
burden of presenting rebuttal evidence to demonstrate that the information in
the PSR is “materially untrue, inaccurate or unreliable.” United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal quotation marks and citation
omitted), cert. denied, 133 S. Ct. 1845 (2013).
Although Cardona Guillen describes his wife’s debriefing testimony as
unreliable because she changed her story, she erred regarding the date of one
of her smuggling trips, and their marriage was strained by infidelity, Cardona
Guillen has provided no rebuttal evidence to demonstrate that the information
in his PSR is unreliable or untrue. It is plausible in light of the record that his
wife tried to minimize their involvement until she was confronted with
information regarding another coconspirator and was thus forced to change her
story to admit other relevant conduct. Cf. United States v. Martin, 615 F.2d
318, 325-26 (5th Cir. 1980) (assessing reliability of informant and concluding
that a some weight should be accorded a statement against penal interests).
The computerized border crossings corroborate four additional smuggling trips
by Cardona Guillen and his wife, and the similar methodology employed by two
2
Case: 12-50643 Document: 00512317211 Page: 3 Date Filed: 07/23/2013
No. 12-50643
other coconspirators at their time of arrest was further corroboration therof.
As it is plausible in light of the record that Cardona Guillen was responsible for
other loads in his prior crossings and that he conspired with his wife and others
to import cocaine in that manner, Cardona Guillen has not demonstrated that
the district court clearly erred when determining the drug quantity for which
he was held responsible. The judgment of the district court is AFFIRMED.
3