Case: 11-10259 Document: 00511687968 Page: 1 Date Filed: 12/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 7, 2011
No. 11-10259
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ROBERT LEE HODGES,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-174-1
Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Following his guilty-plea conviction for possession, with intent to
distribute, 500 grams or more of cocaine, Robert Lee Hodges received a sentence
of, inter alia, 180-months’ imprisonment. He challenges that sentence on three
bases.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-10259
Guidelines sentencing range for use in deciding on the sentence to impose. Gall
v. United States, 128 S. Ct. 586, 596 (2007). In that respect, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Hodges contends the district court erred: in concluding that $7905 seized
during a May 2010 traffic stop constituted drug proceeds; and, in converting this
sum to cocaine to determine the base offense level. He maintains there was an
insufficient showing that the money in question formed part of a common
scheme or plan or the same course of conduct.
A district court may rely on the information in a pre-sentence investigation
report (PSR) in the absence of rebuttal evidence. E.g., United States v. Ollison,
555 F.3d 152, 164 (5th Cir. 2009). The unrebutted information in the PSR
established, by a preponderance of the evidence, that the money seized during
the traffic stop constituted part of a common scheme of distributing cocaine.
U.S.S.G. § 1B1.3(a)(1)(B).
Hodges also maintains he was entitled to an acceptance-of-responsibility
reduction, given his guilty plea and expressions of remorse for his conduct. To
determine whether Hodges was entitled to that reduction, the district court
could consider whether he was “truthfully admitting or not falsely denying any
additional relevant conduct for which [he] is accountable”, and could deny the
reduction if it determined Hodges had “frivolously contest[ed]” the inclusion of
the money seized from him at the time of his May 2010 traffic stop. U.S.S.G.
§3E1.1 cmt. n.1(A). Under our deferential standard of review for acceptance-of-
responsibility denials, the denial of the reduction was not “without foundation”.
E.g., United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (more
deferential than clear error).
Finally, Hodges maintains the district court erred by “implicitly”
concluding that he was a career offender, despite his having only one prior felony
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No. 11-10259
conviction. See U.S.S.G. § 4B1.1(a)(3). The court did not find that Hodges was
a career offender. Although the court referred to Hodges’ criminal history in
imposing an upward departure, that finding did not constitute an “implicit”
finding that Hodges was a career offender. 18 U.S.C. § 3553(a)(1). The sentence
was not unreasonable.
AFFIRMED.
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