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 1997-02

United States v. Cleves ( 1997 )


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  •               IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20245
Summary Calendar
UNITED STATES OF AMERICA,
Appellee,
versus
RITA SUHAYLA CASTRO, also known as
Suhayla Castro, also known as Rita Lugo,
Defendant-Appellant.
CONSOLIDATED WITH
No. 96-20246
UNITED STATES OF AMERICA,
Appellee,
versus
RODRIGO CLEVES, also known as El
Condor, also known as El Pajaro,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. CR H-94-60-6
USDC No. CR H-94-60-1
February 6, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rita Suhayla Castro appeals her guilty-plea convictions for
one count of conspiracy to possess with intent to distribute
cocaine and three counts of possession with intent to distribute
cocaine.     Rodrigo Cleves appeals his guilty-plea convictions for
conspiracy     to   possess   with   intent   to   distribute    cocaine   and
possession with intent to distribute cocaine.            Appellants raised
virtually the same issues on appeal; therefore, the cases have been
consolidated on the government’s unopposed motion.              FED. R. APP. P.
3(b).
Castro and Cleves argue that the district court violated their
substantial rights by not complying with Fed. R. Crim. P. 11(d),
which requires the court to inquire whether the plea results from
prior discussions with the United States attorney.          Neither Cleves
nor Castro identifies any substantial right that was violated by
any variance in the district court’s procedure.                  See U.S. v.
Johnson,
    1 F.3d 296
    , 298 (5th Cir. 1993) (en banc).             Any error was
harmless and not reversible.         Id.; U.S. v. Thomas,
    13 F.3d 151
     (5th
Cir. 1994).
Castro and Cleves argue that there are unresolved factual
questions behind their respective roles in the offenses.              There is
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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substantial evidence in the PSRs to support the district court’s
determination that Castro was a manager and Cleves was a leader in
the   drug    organization.      A     PSR    bears    sufficient     indicia     of
reliability     to   be    considered    as    evidence     in    making   factual
determinations under the Sentencing Guidelines.                  U.S. v. Montoya-
Ortiz,
    7 F.3d 1171
    , 1180 (5th Cir. 1993).                 The district court’s
findings were not clearly erroneous.              See U.S. v. Avlarado,
    898 F.2d 987
    , 993 (5th Cir. 1990).
Cleves and Castro argue that the Government breached the plea
agreement by failing to file a motion to impose a sentence below
the mandatory minimum.         Neither party objected in the district
court.      Furthermore, at the time of sentencing, a unitary motion
under § 5K1.1 was sufficient to implement a departure from the
guidelines     and   the   statutory    minimum       sentence.      See   U.S.   v.
Underwood,
    61 F.3d 306
    , 311-12 (5th Cir. 1995).              The extent of any
departure was within the discretion of the district court.
    Id.
        We
find no substantial rights violated by the Government’s unitary
motion. U.S. v. Calverley,
    37 F.3d 160
    , 162-64 (5th Cir. 1994) (en
banc), cert. denied,
    115 S.Ct. 1266
     (1995).
The    government’s    motion     to    consolidate    these    appeals     is
GRANTED.      The judgment of the district court in both cases is
AFFIRMED.
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