IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50096
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ LUIS CARDENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-98-CR-1605-ALL-DB
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August 23, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
José Luis Cardenas pleaded guilty to an indictment charging
him with conspiracy to possess with intent to distribute
marijuana. Cardenas contends that the district court erred by
increasing his offense level by two levels pursuant to U.S.S.G.
§ 3B1.1 because he was an organizer or leader of the offense.
Cardenas argues that he was not provided with an adequate
opportunity to present information to the court regarding his
role in the offense.
*
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this opinion should not be published and is not precedent except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. 00-50096
-2-
"If information is presented to the sentencing judge with
which the defendant would take issue, the defendant bears the
burden of demonstrating that the information cannot be relied
upon because it is materially untrue, inaccurate or unreliable."
United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
Counsel presented argument but did not offer any evidence.
Cardenas had an opportunity to address the issue and failed to
demonstrate that the information relied upon by the district
court was materially untrue or unreliable.
Cardenas argues that his codefendant's uncorroborated
hearsay statements provided the only evidence showing that he had
an aggravating role in the offense. Accordingly, Cardenas
argues, the district court lacked an adequate evidentiary basis
for concluding that he had a leadership role in the offense.
A district court’s determination that a defendant played an
aggravating role is a factual finding subject to the “clearly
erroneous” standard of review. United States v. Alvarado, 898
F.2d 987, 993 (5th Cir. 1990).
"In resolving any dispute concerning a factor important to
the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules
of evidence applicable at trial, provided that the information
has sufficient indicia of reliability to support its probable
accuracy." U.S.S.G. § 6A1.3.
[A] district court has discretion to adopt a
presentencing report's facts without more specific
inquiry or explanation where the defendant presented
only general unsupported objections to the report.
Further, while a presentencing report may be relied on
by the trial judge as evidence in determining a
No. 00-50096
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sentence, unsworn assertions by the defendant are
unreliable and not to be considered.
United States v. Gray, 105 F.3d 956, 969 (5th Cir. 1997)
(internal citation omitted). The factual basis stipulated to by
Cardenas in connection with the plea agreement corroborated the
codefendant's statement. Cardenas presented no additional
evidence, apart from his own unsworn statement, showing that he
did not have a leadership role. The district court's ruling was
not clearly erroneous. The judgment is
AFFIRMED.
United States v. Cardenas
Combined Opinion