IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10352
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EDWARD LEE, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CR-164-3-A
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October 29, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
James Edward Lee, Jr., appeals his guilty-plea conviction
for mail fraud and aiding and abetting. He argues that in
determining his offense level under the Sentencing Guidelines, the
district court erred in not reducing the amount of loss attributed
to him by the value of the computer equipment that was actually
*
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this opinion should not be published and is not precedent except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. 02-10352
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delivered to the victims, or alternatively, in concluding that the
equipment had no value.1
The district court’s calculation of loss under U.S.S.G.
§ 2F1.1 is a finding of fact, reviewable only for clear error.
United States v. Randall, 157 F.3d 328, 330 (5th Cir. 1998). A
district court’s finding of fact will be deemed clearly erroneous
only if the reviewing court is left with the definite and firm
conviction that a mistake has been made. United States v. Graves,
5 F.3d 1546, 1555 (5th Cir. 1993).
“In a case involving a misrepresentation concerning the
quality of a consumer product, the loss is the difference between
the amount paid by the victim for the product and the amount for
which the victim could resell the product received.” § 2F1.1,
comment. (n.8(a)). However, facts contained in the PSR are
considered reliable and may be adopted without further inquiry if
the defendant fails to present competent rebuttal evidence
demonstrating that the information in the PSR was materially
untrue, inaccurate or unreliable. United States v. Parker, 133
F.3d 322, 329 (5th Cir. 1998). “Mere objections do not suffice as
competent rebuttal evidence.” Id. (citation omitted). Lee’s
unsupported contentions regarding the resale value of the equipment
are insufficient to rebut the information provided in the PSR. See
1
Lee also makes two ill-defined assertions regarding the
district court’s restitution order. Insofar as Lee intends his
assertions to constitute a challenge to the restitution order, he
has waived this argument by failing to adequately brief it. See
United States v. Fagan, 821 F.2d 1002, 1015 n.10 (5th Cir. 1987).
No. 02-10352
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id. at 329. Accordingly, the district court did not clearly err in
not reducing the amount of loss attributed to Lee. See Graves, 5
F.3d at 1555.
Lee also argues that the district court erred in denying
his renewed motion for a continuance of his sentencing hearing.
The decision whether to deny a continuance is vested in the sound
discretion of the district court, and we will reverse only where
the defendant demonstrates an abuse of discretion resulting in
serious prejudice. See United States v. Alix, 86 F.3d 429, 434
(5th Cir. 1996).
A motion for a continuance should be made as early and as
specific as possible. United States v. McDonald, 837 F.2d 1287,
1289-90 (5th Cir. 1988). Lee’s motion, insofar as it was based on
his desire to contest the amount of loss determined by the PSR, was
not timely. Moreover, although Lee noted that he was in contact
with the individual from whom he purchased the computers, and thus
was attempting to “establish a baseline for the value of the
systems,” Lee failed to identify such individual. Nor did Lee show
that he attempted to obtain the attendance of the individual, or
that the individual would give testimony that would materially aid
in his defense. See United States v. Shaw, 920 F.2d 1225, 1230
(5th Cir. 1991)(setting forth criteria to be considered when the
movant seeks a continuance in order to secure the testimony of a
witness). The district court did not abuse its discretion in
denying the motion for a continuance. See Shaw, 920 F.2d at 1230.
No. 02-10352
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The judgment of the district court is AFFIRMED.