UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-20393
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE W ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(CR-H-94-121-4)
February 4, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff George W. Robinson appeals his conviction of and
sentence for conspiracy to possess with intent to distribute
cocaine, cocaine base, and marijuana in violation of 21 U.S.C. §§
841 and 846. We affirm.
I
The government named Robinson in counts one and fourteen of a
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
fifteen-count second superseding indictment charging fourteen
people with drug conspiracy (count one), conspiracy to launder drug
proceeds (count fourteen), and various substantive drug offenses.
Robinson signed a plea agreement on January 30, 1995, in which he
agreed to plead guilty to count one in exchange for the dismissal
of count fourteen. The plea agreement stated that it was an
agreement pursuant to United States Sentencing Commission,
Guidelines Manual, § 5K1.1 (1995) [hereinafter USSG], which would
require the government to move for a downward departure if, in the
United States Attorney’s opinion, Robinson rendered substantial
assistance to the government. The agreement extensively defined
substantial assistance by Robinson and retained the government’s
sole discretion in making a § 5K1.1 motion.
On May 27, 1995, subsequent to Robinson’s conviction in this
case and while Robinson was on bond, law enforcement officers
stopped a vehicle driven by Robinson and confiscated approximately
$16,000 in cash upon which a drug-detection dog alerted. Also
while on bond, Robinson sold crack cocaine to an undercover
narcotics agent on June 13, 1995. On August 9, 1995, Robinson was
arrested in connection with the June 13 drug transaction. The Pre-
Sentence Report (“PSR”) prepared for the instant case reflected
these events.
In his objections to the PSR, Robinson claimed that the
government breached the plea agreement by failing to move for a
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downward departure based on Robinson’s substantial assistance. He
also objected to a two-level adjustment to his offense level for
his leadership role in the count of conviction.
After once postponing sentencing to permit the government to
respond to Robinson’s claim of breach of the plea agreement, the
district court took testimony from government prosecutors regarding
whether Robinson had been given an opportunity to provide
assistance. Assistant United States Attorney Kenneth Dies
testified that he met with Robinson and his counsel in January 1995
to determine whether Robinson possessed information that could be
helpful to the government.2 Assistant United States Attorney
Martha Vara testified that she met with Robinson and counsel in
February 1995 to discuss any information Robinson might possess and
that she made numerous efforts to reach Robinson by telephone at
his home and through his attorney. She also testified that she
obtained Robinson’s telephone number from him in order to reach him
later after unexpectedly meeting him of the Houston courthouse in
mid-March 1995.
Dies testified that he did not call Robinson as a witness in
a related prosecution because he had adequate testimony from three
other witnesses that did not require additional corroboration.
After learning of Robinson’s August 1995 arrest and the allegations
2
This meeting occurred prior to the signing of the plea agreement.
Dies testified that the purpose of this meeting was for the government to
evaluate whether the § 5K1.1 provision should be included in the plea agreement.
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of Robinson’s ongoing drug trafficking, Dies did not contact
Robinson again because, in Dies’ opinion, Robinson had no
credibility and his cooperation could not be helpful to the
government.
The district court found that the government had made efforts
to contact Robinson; that government prosecutors had interviewed
Robinson to determine his value to a related prosecution; that the
prosecutors had decided, in their discretion, that Robinson’s
testimony would not be of “additional value” to the government; and
that Robinson’s August 1995 arrest and the subsequent drug charges
against Robinson “create[d] a change in circumstances” that
supported the government’s discretionary judgment to view Robinson
as unable to provide substantial assistance. Thus, the district
court denied Robinson’s requests for specific performance of the
§ 5K1.1 provision of the plea agreement and for withdrawal of his
guilty plea.
The district court also denied Robinson’s objection to the PSR
regarding his leadership role in the offense. The court sentenced
Robinson within the applicable guideline range to 210 months of
imprisonment.
II
Robinson first argues that the government breached the plea
agreement by failing to make a § 5K1.1 motion for a downward
departure. Whether the government’s actions have breached the
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terms of a plea agreement is a question of law we review de novo.
United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996). The
proper inquiry is whether the government’s conduct comports with
the parties’ reasonable understanding of the agreement. Id. The
defendant bears the burden of demonstrating the underlying facts
that establish the breach by a preponderance of the evidence. Id.
Where, as here, the plea agreement expressly states that the
government retains “sole discretion” over the decision whether to
make a § 5K1.1. motion, we have held that a refusal to do so is
reviewable only for unconstitutional motive. Id. at 368.
Robinson concedes that the government retained discretion to
determine whether a § 5K1.1 motion was warranted, but he argues
that the plea agreement was illusory because the government never
gave him an opportunity to provide assistance. This claim lacks
merit, however, because the government gave Robinson an opportunity
to provide assistance by interviewing him and evaluating whether
his testimony could be helpful in a related prosecution. Moreover,
Robinson’s drug trafficking, carried on subsequent to his
acceptance of the plea agreement, supports the government’s
discretionary decision that Robinson could not provide substantial
assistance deserving of a § 5K1.1 motion. Robinson does not
contend that the government’s refusal to move for a § 5K1.1
departure was based upon an unconstitutional motive. Therefore, we
find that the government did not breach the plea agreement. Price,
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95 F.3d at 368.
Robinson next argues that the district court erred in
adjusting his offense level by two for his role as a leader in the
offense. We review for clear error a district court’s factual
finding that a defendant was a leader/organizer pursuant to USSG
§ 3B1.1. United States v. Ayala, 47 F.3d 688, 689-90 (5th Cir.
1995). Factual findings are not clearly erroneous if they are
plausible in light of the record read as a whole. Id. at 690.
Generally, a PSR bears sufficient indicia of reliability to
permit the sentencing court to rely on it at sentencing. Id. The
defendant bears the burden of demonstrating that the PSR is
inaccurate; in the absence of rebuttal evidence, the sentencing
court may properly rely upon the PSR and adopt it. Id. The court
is free to disregard a defendant’s unsworn assertions that the PSR
is unreliable. Id.
Here, the district court relied on the PSR that described
Robinson’s crack-distribution organization to find that Robinson
deserved a two-level upward adjustment for his leadership role in
the offense. The information in the PSR is based upon police
reports detailing undercover crack purchases from Robinson or his
associates, who were named in the reports. Robinson contends that
this information was insufficient to warrant a two-level increase
for leadership role because it is based on an unsworn police report
and is silent as to activities of Robinson’s underlings in the
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organization. Robinson has not, however, demonstrated that the PSR
is inaccurate; the district court had no obligation to credit
Robinson’s unsworn assertions that the PSR was unreliable.
AFFIRMED.
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