IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-50721
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHELL DANIEL HOGUE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-96-CR-46-2)
_________________________________________________________________
May 30, 1997
Before KING, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Shell Daniel Hogue appeals the sentence imposed by the
district court on the grounds that the district court should not
have made upward adjustments to his base offense level for his
role as a leader in a criminal activity and for possession of a
firearm during a drug trafficking offense. We affirm.
I. BACKGROUND
*
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this opinion should not be published and is not precedent except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.
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A. Statement of Facts
According to the Presentence Investigation Report (PSR),
Drug Enforcement Administration agents received information from
a confidential informant (CI) in February 1996 regarding the drug
trafficking activities of Hogue, who reportedly distributed
multi-kilogram quantities of cocaine and multi-dosages of
lysergic acid diethylamide (LSD) and Ecstasy throughout Texas.
On February 7, 1996, Hogue delivered 894.2 grams of amphetamine
to the CI in Houston. On February 12, 1996, Hogue, who lived in
Houston, provided 5000 dosage units of LSD to the CI and
instructed the CI to deliver the LSD to Herbert Agapetus in
Austin, Texas. Hogue also instructed the CI to retrieve money
that Agapetus owed Hogue from previous drug transactions. Hogue
told the CI that he had supplied Agapetus with 20,000 hits of LSD
the previous week. On February 13, 1996, agents in Austin made a
controlled delivery to Agapetus, resulting in the arrest of
Agapetus and the seizure of an additional 2500 units of LSD.
On February 16, 1996, a search warrant was executed at a
townhouse in Houston. Agents seized 1000 grams of amphetamine,
662.3 grams of methamphetamine, 12.4 grams of Ecstasy, and 1.3
grams of cocaine. They also recovered a loaded nine millimeter
semiautomatic handgun, two Rolex watches, a money counter, and
documentation that linked Hogue to the townhouse.
On March 19, 1996, agents stopped Hogue upon his return from
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New York on a privately chartered flight and seized $52,400 in
cash from his briefcase. Hogue was arrested later that month.
B. Procedural History
Hogue was charged by indictment with conspiracy to possess
LSD with intent to distribute, in violation of 21 U.S.C. § 846,
and possession of LSD with intent to distribute, in violation of
21 U.S.C. § 841(a)(1). Hogue pleaded guilty to the substantive
count in exchange for dismissal of the conspiracy count.
The district court overruled Hogue’s objections to the PSR’s
recommended guideline adjustments to his base offense level of
two points for his leadership role in the offense and two points
for possession of a firearm during a drug trafficking offense.
The court explicitly adopted the factual findings and guideline
application in the PSR, imposing the minimum guideline sentence
of 135 months in prison, followed by five years supervised
release, a fine of $17,500, and a mandatory assessment of $50.
Hogue timely appealed.
II. DISCUSSION
A. Leadership Role
Hogue argues that the district court erred in enhancing his
base offense level pursuant to U.S. SENTENCING GUIDELINES MANUAL
§ 3B1.1(c) based on its finding that he held a leadership role in
the criminal activity. Hogue contends that the finding was
improperly based on conclusory statements contained in the PSR
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and that the absence of any detailed information in the report
relating to such a leadership role denied him the ability to
rebut the allegations at sentencing. Hogue insists that the
information in the PSR establishes only a buyer-seller
relationship between himself and Agapetus, which is not enough to
support an increase in his base offense level based on his role
in the criminal activity.
Under § 3B1.1(c), a defendant’s base offense level may by
increased by two points if the defendant was an organizer,
leader, manager, or supervisor of at least one other participant
in any criminal activity involving less than five participants.
A participant is defined as “a person who is criminally
responsible for the commission of the offense, but need not have
been convicted.” U.S.S.G. § 3B1.1 comment. (n.1). A defendant’s
role in the criminal activity may be deduced inferentially from
the available facts for the purpose of applying § 3B1.1. United
States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). Factors to
consider include the exercise of decision making authority, the
nature of participation in the commission of the offense, the
recruitment of accomplices, and the degree of control and
authority exercised over others. Id.; U.S.S.G. § 3B1.1 comment.
(n.4).
We review a district court’s adjustment pursuant to
§ 3B1.1(c) for clear error. Ayala, 47 F.3d at 689-90. Factual
findings are not clearly erroneous if they are “plausible in
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light of the record read as a whole.” Id. at 690.
The PSR “generally bears sufficient indicia of reliability
to be considered as evidence by the trial judge in making the
factual determinations required by the sentencing guidelines.”
United States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990).
However, “[b]ald, conclusionary statements do not acquire the
patina of reliability by mere inclusion in the PSR.” United
States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993).
We agree with Hogue that the statement in the PSR that
“[w]itnesses described Hogue as being the director of a drug
organization that extended to New York and involved 20 or more
individuals” is conclusory and does not support an increase in
Hogue’s base offense level. However, to qualify for an
adjustment, Hogue only had to be the organizer, leader, manager,
or supervisor of one other participant -- in this case, Agapetus.
U.S.S.G. § 3B1.1 comment. (n.2). Hogue contacted Agapetus and
offered to sell drugs to him. Hogue controlled the quantity and
the price of the drugs sold. Hogue supplied drugs to Agapetus on
a “front” basis, advancing large quantities of drugs to Agapetus
and not requiring payment until Agapetus had successfully sold
them. On several occasions, in fact, Agapetus returned drugs of
poor quality to Hogue because he was unable to sell them.
Furthermore, after Agapetus was arrested, he called Hogue, who
advised him to collect as much money as possible from the other
distributors. The district court was not required to treat the
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post-arrest call as “merely common sense advice” but could
instead treat it as direction.
Although (as the government conceded at sentencing) the CI
cannot be considered a participant, see U.S.S.G. § 3B1.1 comment.
(n.1), Hogue’s interaction with the CI can be considered as a
factor indicating Hogue’s leadership or organizational role.
United States v. Peters, 978 F.2d 166, 170 (5th Cir.
1992)(finding that defendants were organizers of criminal
activity under § 3B1.1(c) based on, among other factors,
defendants’ recruitment of informant’s involvement and meeting
with undercover Customs agent). Hogue initiated contact with the
CI and directed the CI to deliver the LSD to Agapetus and collect
money which Agapetus owed him. Based on the evidence in the PSR,
the district court did not clearly err in finding that Hogue was
an organizer or leader of the criminal activity.1 See United
States v. Vaquero, 997 F.2d 78, 84 (5th Cir.)(finding that upward
1
We note that in addition to relying on the evidence in the
PSR to overrule Hogue’s objection to his sentence enhancement, the
district court stated that “Mr. Hogue has been in this business for
a long time . . . . No question in my mind after handling Mr.
Agapetus’s case that he was within the influence and supervision of
Mr. Hogue.” These additional factors stated by the district court
are not appropriate bases for adjustment of the base offense level
pursuant to § 3B1.1(c). However, we decline to vacate the sentence
because, in light of the evidence in the PSR, the district court
would have imposed an identical sentence even without reference to
these improper bases for adjustment. See United States v. Giraldo,
No. 96-20390, 1997 WL 174810 (5th Cir. Apr. 11, 1997)(affirming the
sentence imposed by the district court after concluding that the
district court “reached the right result but for the wrong
reasons”).
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adjustment of base offense level was warranted where defendant
had “determined whether to purchase cocaine from co-conspirators,
made decisions about its quantity, price, and place of delivery,
and directed others to transport it”), cert. denied, 510 U.S.
1016 (1993).
B. Firearm Possession
Hogue argues that the district court erred in assessing a
two-level adjustment to his base offense level pursuant to
§ 2D1.1(b)(1) based on its finding that he possessed a firearm
during the commission of a drug trafficking offense. Hogue
contends that his conviction is based on his drug transaction
with the CI and Agapetus and that there is no evidence that he
possessed a gun during that transaction.
The district court’s decision to enhance Hogue’s sentence
for possession of a firearm pursuant to § 2D1.1(b)(1) is a
factual determination which we review for clear error. United
States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995). Section
2D1.1(b)(1) provides for a two-point upward adjustment to the
offense level of a drug crime if “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.” U.S.S.G. § 2D1.1,
comment. (n.3); United States v. Mitchell, 31 F.3d 271, 277 (5th
Cir.), cert. denied, 513 U.S. 977 (1994).
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“The government may satisfy its burden of proving a
connection by providing evidence that the weapon was found in the
same location where drugs or drug paraphernalia are stored or
where part of the transaction occurred.” Mitchell, 31 F.3d at
278 (internal quotations omitted). In other words, the
government meets its burden if it proves by preponderance of the
evidence that “‘a temporal and spatial relation existed between
the weapon, the drug trafficking activity, and the defendant.’”
United States v. Eastland, 989 F.2d 760, 770 (5th Cir.)(quoting
United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991)),
cert. denied, 510 U.S. 890 (1993). Furthermore, the sentencing
court need not limit its attention to the offense of conviction
but may also increase a defendant’s sentence pursuant to
§ 2D1.1(b)(1) if it concludes that a firearm was possessed in
connection with unadjudicated offenses that constitute relevant
conduct, as defined by U.S.S.G. § 1B1.3. Vital, 68 F.3d at 119;
United States v. Paulk, 917 F.2d 879, 883-84 (5th Cir. 1990).
Section 1B1.3(a)(2) defines “relevant conduct” to include
acts committed by the defendant that are subject to the count-
grouping rule of § 3D1.2(d) and are “part of the same course of
conduct or common scheme or plan as the offense of conviction.”
Hogue’s possession of large, distributable quantities of other
controlled substances was subject to the grouping rule of
§ 3D1.2(d) and was part of the same course of conduct as the
offense of conviction. Pursuant to § 1B1.3(a)(2), the quantity
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of drugs used to calculate Hogue’s base offense level included
the amount seized from Agapetus in Austin, the amount found in
the townhouse in Houston, and the amount of LSD that Hogue
provided to Agapetus the week before Agapetus was arrested.
Because the gun was found in the same location as the drugs in
the townhouse, the district court did not clearly err in raising
the base offense level two levels for possession of a gun during
a drug trafficking offense.
Hogue also argues that his sentence should be vacated
because the district court did not make specific findings as to
whether the possession of the other drugs was part of the same
course of conduct as the offense of conviction. Federal Rule of
Criminal Procedure 32 requires the sentencing court either to
make specific findings as to all contested facts contained in the
presentence report or to determine that those facts will not be
considered in sentencing. FED. R. CRIM. P. 32(C)(3)(D). Hooten,
942 F.2d at 881. However, “Rule 32 does not require a
catechismic regurgitation of each fact determined and each fact
rejected when they are determinable from a PSR that the court has
adopted by reference.” United States v. Sherbak, 950 F.2d 1095,
1099 (5th Cir. 1992). When a sentencing court expressly adopts
the facts as set forth in the PSR, there is an implicit
determination by the court that the probation department’s
version of the facts should be credited. Id. If a defendant
objects to the PSR but does not present rebuttal evidence to
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refute the facts, the district court may adopt the facts in the
PSR without further inquiry. Id. at 1099-1100.
The basis for the district court’s relevant conduct finding
was clear: the drug quantity used in the PSR to calculate Hogue’s
base offense level included the drugs found in the townhouse.
The district court adopted the factual findings in the PSR. The
district court did not err because no further findings were
required.
III. CONCLUSION
For the foregoing reasons, the sentence imposed on Hogue by
the district court is AFFIRMED.
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