Case: 11-50924 Document: 00511961745 Page: 1 Date Filed: 08/20/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2012
No. 11-50924
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH GIANNI,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
No. 3:10-CR-2789-2
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Joseph Gianni appeals the guidelines-range sentence of 135 months of
imprisonment that was imposed following his guilty-plea conviction of conspiring
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50924
to possess with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 841 and 846. Gianni argues that the district court clearly erred
by failing to award a minor-role reduction and in its drug-quantity determina-
tion.
This court reviews the district court’s interpretation or application of the
sentencing guidelines de novo and its factual findings, such as the determination
of offense role and drug quantity, for clear error. See United States v. Villanu-
eva, 408 F.3d 193, 203 (5th Cir. 2005) (offense role); United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005) (drug quantity). “There is no clear error if the
district court’s finding is plausible in light of the record as a whole.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (internal quota-
tion marks and citation omitted).
Regarding the minor-role adjustment, the guidelines direct a court to
adjust the offense level downwardly if the defendant played a mitigating role in
the offense. U.S.S.G. § 3B1.2 (2010). A “minor participant,” the category that
Gianni contends that he falls within, is one who is “less culpable than most other
participants, but whose role could not be described as minimal.” § 3B1.2, com-
ment. (n.5). Gianni bore the burden of showing that he was entitled to the
adjustment. United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).
Gianni did not offer evidence to support an adjustment. The district court
“is not required to find, based solely on the defendant’s bare assertion, that such
a role adjustment is warranted.” § 3B1.2, comment. (n.3(C). Unrefuted facts in
the presentence report (“PSR”) do not support the conclusion that Gianni was
substantially less culpable than the average participant or that his role was
peripheral to the conspiracy. See Villanueva, 408 F.3d at 203; United States v.
Carbajal, 290 F.3d 277, 287 (5th Cir. 2002).
The PSR, which the district court adopted, indicates that charges against
Gianni arose from a joint investigation by federal and state authorities of the
Sean Doss Drug Trafficking Organization (the “Doss DTO”) and the organiza-
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No. 11-50924
tion’s illegal drug activities. The PSR provides extensive details of the activities
of the Doss DTO and establishes that, on behalf of the Doss DTO, Gianni sold
cocaine, participated in mixing and cutting cocaine, worked with Doss to procure
cocaine, recruited a seller of cocaine, and operated a stash house. The determin-
ation that Gianni was not entitled to the minor-role adjustment therefore is not
clearly erroneous. See Villanueva, 408 F.3d at 203-04.
Although Gianni objected to the drug-quantity determination, he did not
offer evidence to rebut the PSR, so he failed to meet his burden of showing that
the information in the PSR is materially untrue, and the court was entitled to
rely on it. See United States v. Washington, 480 F.3d 309, 320 (5th Cir. 2007);
United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995). Also, a court may extra-
polate drug estimates “from any information that has a sufficient indicia of relia-
bility to support its probable accuracy . . . even hearsay.” United States v. Val-
dez, 453 F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and citation
omitted).
The PSR, which is based on investigative reports of the FBI and local offi-
cials, indicates that the Doss DTO trafficked an historical amount of 358.58 kilo-
grams of cocaine during the relevant time period and that the investigation
resulted in the seizure of 7.42 kilograms. Because Gianni’s offense was a con-
trolled-substance conspiracy offense, the guidelines explicitly anticipate that
Gianni was accountable for all quantities of contraband with which he was dir-
ectly involved and for the reasonably foreseeable quantities of contraband that
were within the scope of the conspiracy. See § 1B1.3, comment. (n.2). Thus, the
finding that Gianni’s offense involved 333 kilograms is “plausible in light of the
record as a whole” and does not amount to clear error. Cisneros-Gutierrez, 517
F.3d at 764 (internal quotation marks and citation omitted); Betancourt, 422
F.3d at 246.
AFFIRMED.
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