United States v. Omar Ashmore ( 2019 )

Case: 19-10427 Document: 00515236963 Page: 1 Date Filed: 12/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-10427
Fifth Circuit
FILED
Summary Calendar December 16, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
OMAR ASHMORE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-293-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Omar Ashmore appeals his 360-month sentence for conspiracy to possess
heroin with intent to distribute, arguing that the evidence was insufficient to
support the four-level U.S.S.G. § 3B1.1(a) enhancement he received for being
a leader or organizer of criminal activity. We review the district court’s
findings of facts for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). If the district court’s factual findings are plausible in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-10427 Document: 00515236963 Page: 2 Date Filed: 12/16/2019
No. 19-10427
light of the record as a whole, there is no clear error. United States v. Serfass,
684 F.3d 548, 550 (5th Cir. 2012). A district court may adopt the facts in a
presentence report (PSR) without additional inquiry “if those facts have an
evidentiary basis with sufficient indicia of reliability and the defendant does
not present rebuttal evidence or otherwise demonstrate that the information
is unreliable.” United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)
(internal quotation marks and citation omitted).
Assuming that Ashmore has not abandoned his argument by failing to
adequately brief it, see United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir.
2010), he has not demonstrated a clear error. The PSR reflected that Ashmore
exercised decision-making authority, was a high-level drug dealer in the
conspiracy, planned or organized the offense to a high degree, and exercised
control and authority over others. Because Ashmore did not introduce rebuttal
evidence, the district court was free to adopt the PSR’s factual findings. See
Trujillo, 502 F.3d at 357. Based on the information in the PSR, the application
of the § 3B1.1(a) enhancement was plausible in light of the record as a whole.
See Serfass, 684 F.3d at 550; see also United States v. Dickerson, 909 F.3d 118,
127-28 (5th Cir. 2018), cert. denied, 139 S. Ct. 2685 (2019); § 3B1.1, comment.
(n.4).
The judgment of the district court is AFFIRMED.
2