United States v. Davila

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                          ___________________

                               No. 99-20271
                             Summary Calendar
                            __________________

                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

                 GUADALUPE DAVILA, also known as Lupe,
               also known as Homes, also known as Gordo,
                        also known as El Gordo,

                                             Defendant-Appellant.
________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-97-CR-226-6)
_________________________________________________________________

                            November 10, 1999

Before JONES, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Guadalupe Davila appeals his 140—month sentence following a

guilty-plea conviction for conspiracy to possess with intent to

distribute cocaine and marijuana.         Consistent wth his sentencing-

objection,     Davila   contends   that   the   district   court   erred   in

calculating his offense level based upon finding that his offense

involved 16 kilograms of cocaine.

     The drug-amount finding is a factual determination, reviewed

only for clear error.     E.g., United States v. Alford, 142 F.3d 825,

831 (5th Cir.), cert. denied, ___ U.S. ___, 119 S. Ct. 514 (1998).

     *
      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this opinion should not be published and is not precedent except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.
In this regard, a presentence report (PSR) is generally considered

sufficiently reliable “to be considered by the trial court as

evidence in making the factual determinations required by the

sentencing guidelines”.         United States v. West, 58 F.3d 133, 138

(5th Cir. 1995).

     Pursuant to the PSR, Davila relayed messages for the drug

conspiracy,   collected    drug     proceeds,   and   was    compensated    in

cocaine; and, therefore, the PSR contained sufficient evidence to

support   finding   that   it    was   foreseeable    to    Davila   that   the

conspiracy involved 16 kilograms of cocaine.

     Davila did not present        evidence to rebut the PSR’s findings.

Accordingly, the district court, which is entitled to adopt an

uncontested PSR without further inquiry, e.g., Alford, 142 F.3d at

832; United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995), did

not clearly err.

                                                               AFFIRMED




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