United States v. Morid ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11438
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IKECHUKWU NNAMDI MORID,
also known as Darlington Ojiagbaje,
also known as Joseph Ikecukwu Iwegbu,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-198-1-X
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June 13, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Ikechukwu Nnamdi Morid (Morid) appeals from a guilty-plea
conviction for mail fraud. 18 U.S.C. §§ 1341, 2. Morid argues
that the district court erred in imposing a 13-level sentencing
guideline enhancement for the amount of loss and a four-level
leadership role enhancement. He argues that the district court
*
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that this opinion should not be published and is not precedent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.
No. 01-11438
-2-
assessed the enhancements based upon unreliable hearsay testimony
in violation of his due process rights.
This court “will uphold the district court’s sentence so
long as it results from a correct application of the guidelines
to the factual findings which are not clearly erroneous.” United
States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991)(citation
omitted). The amount of loss and an adjustment for being a
leader or organizer are findings of fact reviewed for clear
error. Id.; United States v. Chappell, 6 F.3d 1095, 1101 (5th
Cir. 1993).
Morid’s relies upon Bruton v. United States, 391 U.S. 123
(1968), for the proposition that uncorroborated hearsay
statements from co-offenders are inadmissible. Morid’s reliance
is misplaced because Bruton addressed hearsay statements made at
trial; rather, as in Morid’s case, evidence that is inadmissible
at trial may be admissible during sentencing hearings. See
United States v. Rojas-Martinez, 968 F.2d 415, 422 (5th Cir.
1992)(citation omitted). “In general, the [presentence report]
PSR bears sufficient indicia of reliability to be considered as
evidence by the district court, especially when there is no
evidence in rebuttal.” United States v. Londono, 285 F.3d 348,
354 (5th Cir. 2002)(internal quotation omitted). The defendant
bears the burden of demonstrating that the findings contained in
the PSR are “materially untrue, inaccurate, or unreliable.” Id.
(citation omitted).
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Morid offered no evidence other than unsworn assertions at
the sentencing hearing to rebut the findings in the PSR. Morid’s
unsworn assertions are insufficient rebuttal evidence. See
Chavez, 947 F.2d at 746. Morid has thus failed to show that the
district court’s findings as to the amount of loss and his role
in the offense were clearly erroneous. See id. Accordingly, the
judgment of the district court is AFFIRMED.