IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30401
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILMER RIASCOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 94-CR-288"L”
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February 12, 1998
Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Gilmer Riascos appeals from his sentence for conspiracy to
distribute cocaine hydrochloride. Riascos admitted to conspiring
with Javier Murillo-Ortiz (“Murillo”), Tanya Fobbs Ortiz
(“Ortiz”), Marvin Fobbs, Mary Ellen Dugas, and Javiel Soriano.
Riascos argues that the district court erred in increasing his
offense level by four levels for being a leader of a criminal
activity involving five or more participants, pursuant to U.S.
Sentencing Guidelines (“Guidelines”) § 3B1.1(a). We review
*
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that this opinion should not be published and is not precedent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.
No. 96-30401
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factual findings under the Guidelines for clear error. United
States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). Factual
findings are not clearly erroneous if plausible in light of the
record as a whole. Id.
It is not necessary for the defendant to have personally led
all five participants in the criminal activity to warrant the
leadership adjustment; personally leading at least one
participant is sufficient. U.S.S.G. § 3B1.1 comment. (n.2);
United States v. Okoli, 20 F.3d 615, 616 (5th Cir. 1994).
Evidence obtained from Drug Enforcement Administration (“DEA”)
wiretap monitoring of Ortiz and Murillo’s telephone line clearly
indicates that Riascos was acting as a leader in relation to
Murillo and Soriano. Therefore, it was not error for the
district court to increase Riascos’ offense level pursuant to
Guidelines § 3B1.1(a).
Riascos further argues that the evidence relied upon by the
district court in giving him the leadership adjustment was
insufficiently reliable to be used in the sentencing process.
All facts used for sentencing purposes are required to be
“reasonably reliable.” United States v. Shacklett, 921 F.2d 580,
584-85 (5th Cir. 1991); see U.S.S.G. § 6A1.3(a). The defendant
bears the burden of proving that the evidence relied upon by the
sentencing court was untrue. United States v. Puig-Infante, 19
F.3d 929, 943 (5th Cir. 1994).
No. 96-30401
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The evidence relied upon by the sentencing court was
gathered by the DEA agents investigating this conspiracy and was
corroborated by the factual basis agreed to by Riascos in his
guilty plea. In addition, Riascos failed to produce any rebuttal
evidence to meet his burden of disproving the DEA evidence.
Therefore, the DEA evidence was sufficiently reliable to be used
in the sentencing process, and the district court did not err in
relying upon it. See United States v. Cuellar-Flores, 891 F.2d
92, 93 (5th Cir. 1989)(uncorroborated hearsay evidence from law-
enforcement officer sufficiently reliable).
AFFIRMED.