United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2007
_______________________ Charles R. Fulbruge III
Clerk
No. 06-40973
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
FRANCISCO R. DOMINGUEZ, also known as Poncho,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas,
No. 4:04-CR-71-9
Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.
PER CURIAM:*
Francisco R. Dominguez pled guilty to conspiracy to
possess methamphetamine with the intent to distribute and was
sentenced to forty-five months imprisonment. He argues that the
district court plainly erred by increasing his sentence based on an
additional 113 grams of methamphetamine. Because the district
court’s reliance on the PSR did not amount to plain error, we
AFFIRM.
*
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opinion should not be published and is not precedent except under the limited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.
I. BACKGROUND
Dominguez was arrested in February 2003 for selling 435
grams of methamphetamine to a co-conspirator, Nadim Safdar.
According to Dominguez’s PSR, Safdar informed the FBI in a May 2003
interview that he had also purchased 113 grams from Dominguez at a
stash house for illegal drugs. Dominguez pled guilty in June 2004
to one count of conspiracy to possess methamphetamine with the
intent to distribute in violation of 18 U.S.C. § 846. After this
court vacated and remanded his original sentence, Dominguez was
resentenced in May 2006 to 45 months imprisonment based on a total
of 548 grams of methamphetamine.
II. DISCUSSION
Dominguez argues that the attribution of the additional
113 grams of methamphetamine was based on the unreliable,
uncorroborated, and unsworn statement of a co-conspirator. See
United States v. Shacklett, 921 F.2d 580 (5th Cir. 1991) (per
curiam). Because he did not make an objection before the district
court, we review for plain error only. See United States v.
Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
District courts retain significant discretion in
evaluating a PSR’s reliability. See United States v. Ingles, 445
F.3d 830, 839 (5th Cir. 2006) (“A PSR generally bear[s] indicia of
reliability sufficient to permit reliance thereon at sentencing.”
(internal quotation marks omitted)). However, “[b]ald, conclusory
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statements do not acquire the patina of reliability by mere
inclusion in the PSR.” United States v. Elwood, 999 F.2d 814, 817-
18 (5th Cir. 1993). A defendant normally has the burden to show
that information in the PSR is materially untrue, inaccurate, or
unreliable. Cf. United States v. Taylor, 277 F.3d 721, 725 (5th
Cir. 2001) (burden on the government when a use-immunity agreement
is involved); Shacklett, 921 F.2d at 584 (PSR not reliable where it
was based on the probation officer’s bald assertions but did not
state “when, where, by whom, or for what purpose [the co-
conspirator] was interviewed”).
The PSR does not contain bald assertions by the probation
officer, and Dominguez has not shown that the information in the
PSR is incorrect or unreliable. See Ingles, 445 F.3d at 839. The
district court did not plainly err by relying on the PSR’s version
of these events. We decline Dominguez’s invitation to turn the
Shacklett court’s observations about the probation officer’s
inadequacies in that case into mandatory PSR requirements.
AFFIRMED.
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