United States v. Cruz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20604
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-512-4
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February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Victor Cruz appeals his sentence for his guilty-plea
conviction of conspiracy to possess with intent to distribute
five kilograms or more of cocaine and possession of cocaine with
intent to distribute, in violation of 21 U.S.C. §§ 846 and
841(a)(1).
Cruz argues that the district court clearly erred in
determining the amount of cocaine attributable to him for
sentencing purposes. Cruz’s primary contention is that court
improperly relied on codefendant Raul Valdez’s statement, as
*
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that this opinion should not be published and is not precedent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. 99-20604
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related in Cruz’s Presentence Report (“PSR”), that he was
involved not only with 84.96 kilograms of cocaine during a
December 2, 1998, controlled delivery but also with previous
deliveries of 15, 20, and 40 kilograms. Although Cruz contends
that Valdez actually stated that the third of these three
previous deliveries involved “30 to 40” kilograms, he offered no
evidence at sentencing to refute the PSR statement. The district
court was entitled to rely on the PSR version of Valdez’s
statement. See United States v. Shipley, 963 F.2d 56, 59 (5th
Cir. 1992) (statements in PSR normally bear “sufficient indicia
of reliability” for sentencing purposes); United States v.
Morrow, 177 F.3d 272, 304 (5th Cir.) (unsworn declarations by
defendant are not sufficient to refute PSR information that bears
sufficient indicia of reliability), cert. denied, 120 S. Ct. 333
(1999). The district court’s determination was not clearly
erroneous. See United States v. Torres, 114 F.3d 520, 527 (5th
Cir. 1997).
AFFIRMED.