United States v. Valencia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 94-40063
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

JOSE JAIRO VALENCIA,
Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Louisiana
(93-CR-10012-10)
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(January 26, 1995)
Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:
Jose Jairo Valencia pleaded guilty to conspiracy to distribute

cocaine, count one of an eleven-count indictment which charged
Valencia and his nine codefendants. He appeals his 81-month sentence
of imprisonment, asserting that the district court erred by
increasing his offense level by four levels pursuant to U.S.S.G. §
3B1.1(a) and by attributing to him all the cocaine found in his
apartment when he was arrested. We affirm his sentence.

FACTS
On August 19, 1992, a traffic stop in Allen Parish, Louisiana,
revealed one and one-quarter kilos of cocaine in a vehicle with three
passengers, all named as co-conspirators in count one. One of the
passengers, R.B. Mills, revealed that the cocaine was supplied by

Valencia and that Valencia previously had provided approximately four
kilos of cocaine, and that all the cocaine went to an Alexandria,
Louisiana drug ring headed by Aaron Bruce Williams (hereinafter

referred to as "the Williams organization", or "the Williams group").
Valencia admitted that he had supplied more than five kilos of
cocaine to the Williams group in Alexandria. Valencia cooperated
with law enforcement agents by wearing a wire when receiving payment
for prior deliveries and talking with one of the leaders of the

Williams organization about future deals.
The presentence investigation report's (PSR) description of the
offense explained the role Mills played in uncovering the operations
of the Williams organization. The PSR lists Valencia and four other
individuals as suppliers to the Williams organization, and states
that, incident to Valencia's arrest, Houston law enforcement
discovered approximately four kilos of cocaine and 8.5 grams of

cocaine base in Valencia's apartment.
At sentencing, the district court found Valencia accountable for

all the cocaine found in his apartment. The district court also
found that Valencia was an organizer of the criminal enterprise and,
pursuant to U.S.S.G. § 3B1.1(a), increased the offense level by four.
The court noted that Valencia was not "uniquely situated," but
because of his communication with the other conspirators, he promoted
the sale, use, and distribution of cocaine. After addressing all the

objections to the PSR, the district court calculated an offense level
of 33, with an associated guideline range of 168-210 months
imprisonment. The district court then granted the government's
motion for a downward departure from the guidelines (due to
Valencia's substantial assistance) and reduced his offense level to

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26. This resulted in a new guideline range of 78-97 months
imprisonment. The district court sentenced Valencia within this new

range to 81 months imprisonment.
Valencia challenges the increase in his offense level which
arose from the district court's finding that he was an organizer of
the criminal scheme. He also challenges the amount attributed to him
from the drugs found in his apartment. Finding no clear error in the

district court's factual findings, and no error in the district
court's application of the guidelines, we affirm.
DISCUSSION
§ 3B1.1 ORGANIZER?
In his challenge to the § 3B1.1 finding, Valencia argues that,
although he supplied large quantities of cocaine to the Williams
organization, his role in the offense did not meet the factors that

the guideline commentary directs the court to use in making its
determination of who is a leader or organizer.

Valencia asserts in brief that the district court improperly
applied § 3B1.1. However, the determination of whether a defendant
is a § 3B1.1 leader or organizer is a factual determination. United
States v. Mejia-Orosco, 867 F.2d 216, 220 (5th Cir. 1989), cert.
denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). The
role of a defendant--whether he is a leader or organizer, or minimal

or minor participant, is among the "'sophisticated factual
determinations' a district court makes which 'depend upon an
assessment of the broad context of the crime.' Accordingly, such
findings 'enjoy the protection of the "clearly erroneous" standard.'"
United States v. Hatchett, 923 F.2d 369, 376 (5th Cir. 1991), quoting

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United States v. Mejia-Orosco, 867 F.2d at 221. See also, United
States v. Buenrostro, 868 F.2d 135, 137 (5th Cir. 1989), cert.

denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).
We review challenges to factual findings under the guidelines
for clear error. United States v. Mackay, 33 F.3d 489, 496 (5th Cir.
1994); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994).
Thus, we will disturb a district court's factual finding regarding a

defendant's role in criminal activity only if it is clearly
erroneous. United States v. Barreto, 871 F.2d 511, 512 (5th Cir.
1989); United States v. Puig-Infante, 19 F.3d 929, 944 (5th Cir.
1994), cert. denied, 115 S.Ct. 180, 130 L.Ed.2d 114 (1994). A
factual finding is not clearly erroneous if it is plausible in light
of the record read as a whole. Puig-Infante, id. at 942; United
States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir. 1992). See also,

United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir. 1990),
cert. denied, 498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d 124 (1990)

("While any information with 'sufficient indicia of reliability to
support its probable accuracy' may be considered in making the
sentencing factfindings, . . . there must be 'an acceptable
evidential basis' for the court's factfindings at the sentencing
hearing." (citations omitted)).
The sentencing guidelines provide a four-level increase in the

offense level if the defendant was an "organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive." U.S.S.G. § 3B1.1(a). Section 3B1.1 was
intended to be applied "only if a defendant was an organizer or
leader of at least one other person who was criminally culpable in,

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though not necessarily convicted for, the endeavor." United States
v. Gross, 26 F.3d 552, 554-55 (5th Cir. 1994).

The instant sentencing judge is the same district judge who
presided in the October 27, 1993 - November 2, 1993 trial of Aaron
Bruce Williams, Arthur Williams, and Garland Andrew Stewart, three of
Valencia's nine codefendants. Valencia testified in that trial, as
a government witness, about his role and his knowledge of the role of

his co-conspirators.1 At Valencia's January 7, 1994 sentencing, the
district judge noted his recollection of "all the testimony" and
stated that "[Valencia] had dialogue and connection with the other
people in this transaction so that he was promoting not only sale but
use and distribution."
Valencia contends that the district court improperly applied
§3B1.1(a) because his role as supplier is not the equivalent to being

a "leader or organizer".2 He does not challenge the district court's
reliance on testimony from the trial of codefendants. "In a plea

bargain case, this court will not review challenges to the factual
basis of a guideline's applicability which has not been preserved by
objection in the district court." United States v. Mourning, 914
F.2d 699, 704 (5th Cir. 1990).3 Despite Valencia's argument of

1
During oral argument, defense counsel indicated that she
was present during Valencia's testimony at the co-conspirators'
trial. Although she did not recall details of his testimony, she
indicated that he testified about his role and that of others.
2
The PSR does not contain information which shows that
Valencia directed others. Its §3B1.1 recommendation, is based upon
Valencia's supplier status.
3
When questioned during oral argument, counsel for
Valencia maintained that the objection is to the characterization

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"improper application", as we have noted, at issue is the district
court's factual determination about Valencia's role in the criminal

enterprise. Absent clear error in this determination, the district
court's application of § 3B1.1 is proper.
It is plausible, in light of the record read as a whole, that
Valencia was more than just a supplier, and that Valencia had a
dialogue and connection with his co-conspirators from which the

district court could conclude that he was an organizer within the
meaning of § 3B1.1. The record supports this finding via the guilty
plea transcript's description of Mills' role and the connection
between Mills and Valencia, and by the subsequent observation
recorded in the reasons for detaining one of Valencia's codefendants.4

of Valencia as an organizer on the basis of his role as a supplier,
and concluded that the supplier of such a large quantity
necessarily promotes sale, use, or distribution, thus these factors
are not indicia of a § 3B1.1 "leader" or "organizer" role.
Valencia did not object to the district court's reliance on "all
the testimony" either at the time of sentencing, in his brief to
this court, or at oral argument. Although, we do not review the
question whether the district court may rely upon the testimony
from the codefendant's trial, Mourning, we do note that, generally,
the district court may take judicial notice of its own records.
See and compare, Horowitz v. Henderson, 514 F.2d 740, 741 n.1 (5th
Cir. 1975) ("The sentencing Judge, even had he not presided over
the Williford trial, would nevertheless have been entitled to take
judicial notice of proceedings in open court."); United States v.
Estep, 760 F.2d 1060, 1063 (10th Cir. 1985) (It was within the
court's discretionary authority to judicially notice the trial
transcript of the earlier portions of the same proceeding.).
4
Magistrate Judge Marcia A. Crone's February 7, 1994
"Written Statement for Reasons of Detention [of codefendant Huber
Asparillo Moreno]" (R.Vol.4, p. 1205) states that "Valencia
explained that he wanted Moreno to accompany Mills and Stewart on
the fourth delivery to make sure that the money got back to Houston
so that Valencia could pay his source for the drugs." To the extent
that Valencia's trial testimony was consistent with this statement,
the district court could easily infer that Valencia played an
organizational role over and above that of supplying the cocaine.

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Although the quantity of cocaine is a nondispositive factor in the §
3B1.1 determination, it is a factor nonetheless. When this factor is

combined with the other information upon which the district court
relied, we find no clear error in the § 3B1.1 finding, even though
the district court failed to specifically articulate the factual
basis for its determination. As we stated in Mejia-Orosco, 867 F.2d
at 221,

We will affirm sentences imposed by district judges who
make factual findings that are not clearly erroneous, and
who apply the guidelines to those findings. In such cases,
the sentencing judge need not offer further reasons
justifying the sentence. . . .
Implicit in what we have said is the conclusion that
the district court's simple statement that the defendant
is a "manager" or "leader" is a finding of fact. Building
on the lesson of Wainwright v. Witt, [469 U.S. 412,] 105
S.Ct. [844] at 855, [83 L.Ed.2d 841 (1985)], we "decline
to require the judge to write out" more specific findings
about the defendant. We recognize that so formal a
requirement would interfere with the smooth operation of
the sentencing hearing. In some instances, what is
necessarily a "judgment call" may not be susceptible of
particularization. Nonetheless, we urge district courts
to clarify their ultimate factual findings by more specific
findings when possible.
Because we find no clear error in the factual finding that Valencia
was an organizer, it follows that the district court properly applied
U.S.S.G. § 3B1.1(a) to this factual determination. Accordingly, we
affirm the four level increase.
CONSTRUCTIVE POSSESSION?

Valencia also challenges the use of all the cocaine found at his
residence in computing the amount he possessed. The district court

See Rodriguez, 897 F.2d at 1326 (the district court is permitted to
make inferences from the facts, and these inferences are
factfindings reviewed under a clearly erroneous standard).

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considered his objection, but found that "all of the substance in the
apartment is properly tagged to Mr. Valencia". The district court

noted that he was living in the apartment and had a female companion,
and that there was no indication that when the police arrived at the
apartment anyone tried to leave or run away.
Constructive possession is defined as "ownership, dominion, or
control over illegal drugs or dominion over the premises where drugs

are found." United States v. Carter, 953 F.2d 1449, 1456 (5th Cir.
1992), cert. denied sub nom., Hammack v. United States, 112 S.Ct.
2980, 119 L.Ed.2d 598 (1992), quoting United States v. Onick, 889
F.2d 1425, 1429 (5th Cir. 1989). Thus, one who exercises dominion
over premises where contraband is found can be deemed to possess.
United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992).
A presentence report generally bears sufficient indicia of

reliability to be considered as evidence by the district court in
resolving disputed facts. United States v. Montoya-Ortiz, 7 F.3d

1171, 1180 (5th Cir. 1993). A district court may adopt facts
contained in the PSR without further inquiry if the facts have an
adequate evidentiary basis and the defendant does not present
rebuttal evidence. United States v. Puig-Infante, 19 F.3d 929, 943
(5th Cir.), cert. denied, 115 S.Ct. 180 (1994). See also, United
States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992), cert. denied, 113

S.Ct. 348, 121 L.Ed.2d 263 (1992) (The district court may rely on
information contained in the PSR in making its factual determination
for sentencing, as long as the information has some minimum indicium
of reliability). The defendant bears the burden of showing that the

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information in the PSR relied on by the district court is materially
untrue. Puig-Infante, 19 F.3d at 943.

The PSR indicates that the apartment in which Valencia was
arrested, and in which the challenged amount of cocaine was found,
was Valencia's apartment. Valencia objected, asserting that the
apartment was someone else's residence and that he was visiting at
the time of his arrest. In response, the PSR states that the

Department of Public Safety records reveal that Valencia had recently
changed his address to this apartment. On appeal, Valencia contends
that, because there is a factual dispute, the district court had
insufficient information to support its finding that the drugs found
in the apartment should be assessed to him as relevant conduct. We
disagree.
The source of the information upon which the district court

relied has sufficient indicia of reliability to support its probable
accuracy. Although Valencia correctly observes that no testimony was

presented on this issue, the record reflects no request for, or
denial of, an evidentiary hearing. Valencia has not shown that the
PSR information is untrue. We find no error in the district court's
decision to accept the information contained in the PSR. The PSR
provides a sufficient basis for a factual determination that the
apartment was Valencia's residence over which Valencia exercised

dominion. The district court's conclusion that all the cocaine found
in the apartment can be attributed to Valencia for sentencing
guidelines purposes was therefore not in error.
CONCLUSION
For the foregoing reasons, Valencia's sentence is AFFIRMED.

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