UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40765
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GUILLERMO CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(1:96-CR-104-7)
April 27, 1998
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Guillermo Cruz pleaded guilty to conspiracy to possess with
intent to distribute 516.7 pounds of marihuana, in violation of 21
U.S.C. § 846. The district court sentenced him to a 60-month term
of imprisonment, to be followed by a five-year term of supervised
release. On direct appeal, Cruz makes the following assignments of
*
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this opinion should not be published and is not precedent except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.
error: (1) the district court improperly attributed the entire
amount of marihuana to him for sentencing purposes, and (2) the
district court erred in determining that he had not accepted
responsibility and thus was not entitled to a downward adjustment.
Neither contention has merit. We affirm.
The presentence report showed that Cruz was involved in a
conspiracy to transport 516.7 pounds of marihuana from Texas to
three other states for distribution. Cruz is accountable for drugs
which were part of the jointly-undertaken criminal activity and
which were reasonably foreseeable to him.2 In this case, Cruz and
six co conspirators were transporting 516.7 pounds of marihuana in
an 18-wheel truck at the time they were stopped by police. Even
though Cruz contends that he was recruited only to help distribute
200 pounds of marihuana, it was certainly foreseeable to him that
a far greater amount of drugs was involved in the conspiracy. The
district court did not err in relying on the presentence report,
which held Cruz accountable for the entire 516.7 pounds of
marihuana.3 Furthermore, because Cruz failed to prove that the
district court relied on information that was materially untrue,
2
See U.S.S.G. § 1B1.3(a)(1).
3
See United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.
1990) (a presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial judge in
making factual determinations).
2
his due process claim fails, too.4
The district court did not commit error in declining to award
Cruz a downward adjustment for acceptance of responsibility. At
sentencing, Cruz was less than forthright about the nature of his
involvement in the conspiracy. Accordingly, it was not clear error
for the district court to find that Cruz had not accepted
responsibility.5
AFFIRMED.
4
See United States v. Galvan, 949 F.2d 777, 784 (5th Cir.
1991).
5
See United States v. Salinas, 122 F.3d 5, 7 (5th Cir. 1997).
3