United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 15, 2004
Charles R. Fulbruge III
Clerk
No. 04-10109
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD CHARLES SWINEY, also known as BG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-78-9-N
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Ronald Charles Swiney appeals his sentence following his
plea of guilty to three counts of distribution of cocaine base.
Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004), Swiney
argues that he was sentenced based on a drug quantity
determination that was not based on his admitted conduct or
determined by a jury beyond a reasonable doubt. Swiney has
acknowledged that this court’s recent decision in United States
v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), petition for
*
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this opinion should not be published and is not precedent except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. 04-10109
-2-
cert. filed, (U.S. July 14, 2004) (No. 04-5263), forecloses this
issue.
Swiney also argues that the district court erred by
attributing to him the amounts of cocaine base sold by his co-
defendants. See U.S.S.G. § 1B1.3. He argues that the Government
failed to establish that he agreed to a jointly undertaken
criminal activity or that his co-defendants’ drug sales were
within the scope of any such agreement. We review a district
court’s drug-quantity finding for clear error. United States v.
Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000). The district
court did not clearly err in finding that Swiney was engaged in a
jointly undertaken criminal activity and that the other gang
members’ drug sales were reasonably foreseeable acts in
furtherance of this activity. See § 1B1.3(a)(1)(B).
Swiney also challenges the Government’s method of
calculating the amount of drugs attributed to each defendant.
The district court is not limited to the actual quantity of drugs
seized but may estimate the quantity of drugs attributable to the
defendant. See United States v. Medina, 161 F.3d 867, 876 (5th
Cir. 1998). Facts contained in the PSR are considered reliable
and may be adopted without further inquiry if they have an
adequate evidentiary basis and the defendant fails to present
rebuttal evidence. See United States v. Huerta, 182 F.3d 361,
364 (5th Cir. 1999). We conclude that the district court did not
clearly err in adopting the facts contained in the PSR and
No. 04-10109
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presented at sentencing; these facts had an adequate evidentiary
basis and, although he challenged the Government’s version of the
facts, Swiney failed to present any evidence in rebuttal.
Swiney also asserts that the district court erred by
imposing a two-level enhancement for possession of a dangerous
weapon. See U.S.S.G. § 2D1.1(b)(1). The district court’s
decision to apply § 2D1.1(b)(1) is a factual determination
subject to review for clear error. United States v. Devine, 934
F.2d 1325, 1339 (5th Cir. 1991). We conclude that the district
court did not clearly err in determining that Swiney could
reasonably foresee his co-conspirators’ possession of firearms as
tools of the drug-trafficking trade. United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).
Swiney also argues that the district court erred by finding
him ineligible for a two-level reduction under the “safety valve”
provisions of U.S.S.G. § 2D1.1(b)(6). As part of his plea
agreement, Swiney waived “the right to appeal his sentence on any
ground,” with certain exceptions that are inapplicable here.
Swiney was properly advised of the terms of this waiver at
rearraignment, and we conclude that he agreed to the waiver
knowingly and voluntarily. See United States v. Portillo, 18
F.3d 290, 292 (5th Cir. 1994); FED. R. CRIM. P. 11(b)(1)(N).
Therefore, we will uphold the waiver provision and we not
consider this issue.
AFFIRMED.