United States v. Rose , 261 F. App'x 652 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2008
No. 07-40243
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAVID LESLIE ROSE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-685-1
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
David Leslie Rose appeals the sentence imposed following his guilty plea
to possession of child pornography. He argues that (1) the district court violated
his Fifth Amendment privilege in imposing an above-guideline sentence and,
alternatively, (2) the sentence was unreasonable. We affirm.
Rose argues that the district court violated his right against self-
incrimination when it adversely inferred from his silence that he had committed
the allegations of sexual abuse contained in the Presentence Report (PSR) to
*
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should not be published and is not precedent except under the limited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. 07-40243
upwardly depart from the advisory guideline range. Rose did not preserve this
constitutional issue for review, and, therefore, we review for plain error only.
See United States v. Martinez, 496 F.3d 387, 389 (5th Cir.), cert. denied, 2007 WL
3265472 (U.S. Dec. 3, 2007) (No. 07-7436). When Rose invoked his Fifth
Amendment privilege, the district court construed his silence as a refusal to
controvert the allegations, thereby entitling the court to rely on them as a basis
for an upward departure. See FED. R. CRIM. P. 32(i)(3)(A); United States v.
Romero-Rendon, 220 F.3d 1159, 1163 n.4 (9th Cir. 2000). Rose has shown no
Fifth Amendment error on the part of the district court, plain or otherwise.
Rose alternatively argues that his non-guideline sentence was
unreasonable because the hearsay allegations of sexual abuse contained in the
PSR lacked sufficient indicia of reliability, but were nevertheless given
significant weight, and the sentence did not account for a factor that should have
received significant weight, i.e. his acceptance of responsibility for the offense.
The reliability of Rose’s ex-wife’s hearsay allegations was bolstered by his
daughter’s corroborative statement that her aunts had been sexually abused by
Rose and, additionally, by information that Rose’s post-divorce contact with his
daughters was restricted. The hearsay evidence, which Rose failed to rebut,
carried sufficient indicia of reliability such that the district court was entitled
to adopt that information without further inquiry. See United States v. Ramirez,
367 F.3d 274, 277 (5th Cir. 2004); United States v. Golden, 17 F.3d 735, 736 (5th
Cir. 1994). Rose’s argument that his acceptance of responsibility precluded the
district court from upwardly departing to the statutory maximum is
unpersuasive. He has therefore not shown the sentence to be unreasonable. See
United States v. Smith, 440 F.3d 704, 706, 708 (5th Cir. 2006).
AFFIRMED.
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