United States v. Alfonso

Case: 21-20036 Document: 00516250097 Page: 1 Date Filed: 03/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 23, 2022
No. 21-20036
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Sandra Michelle Alfonso,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-259-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Sandra Michelle Alfonso pleaded guilty to conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). She appeals the district court’s
finding that she was accountable for 4.5 kilograms or more of
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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No. 21-20036
methamphetamine (actual), resulting in a base offense level of 38 under
U.S.S.G. § 2D1.1(c)(1). Alfonso contends that the Houston Police
Department (HPD) did not use a calibrated scale to weigh the 12 packages of
methamphetamine recovered from her car, that the HPD did not thoroughly
examine the packages to make sure they did not contain other objects, and
that the actual weight of the methamphetamine was uncertain because it was
weighed with its packaging.
We apply the clearly erroneous standard of review to the district
court’s factual determination regarding the quantity of drugs used to
establish the defendant’s base offense level. United States v. Dinh, 920 F.3d
307, 310 (5th Cir. 2019). We will not find clear error when “the district
court’s finding is plausible in light of the record as a whole.” United States v.
Rico, 864 F.3d 381, 383 (5th Cir. 2017).
A presentence report (PSR) generally bears sufficient indicia of
reliability to be considered by the sentencing judge in making factual
determinations. United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014).
A “district court may properly find sufficient reliability on a [PSR] which is
based on the results of a police investigation.” United States v. Vela, 927 F.2d
197, 201 (5th Cir. 1991). If the PSR bears sufficient indicia of reliability, then
the defendant has the burden of showing that the PSR is inaccurate. United
States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013). If the defendant fails to
produce sufficient rebuttal evidence, a sentencing court may properly rely on
the PSR and adopt the factual findings contained therein as its own. United
States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013).
The PSR in this case was based on a review of the relevant police
records and an interview with the lead agent, giving it sufficient indicia of
reliability. See Vela, 927 F.2d at 201. Alfonso failed to provide any rebuttal
evidence to support her objections that the scale used to weigh the packages
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No. 21-20036
may have been faulty or that the methamphetamine, which weighed 6.12
kilograms including the packaging, would have weighed less than 4.5
kilograms had it been weighed without the packaging. Her “[m]ere
objections” to the facts in the PSR did not “suffice as competent rebuttal
evidence.” Alaniz, 726 F.3d at 619 (internal quotation marks and citation
omitted). Regarding her contention that the HPD did not thoroughly
examine each package, the district court is explicitly permitted “to
extrapolate the nature and quantity of drugs involved in an offense based on
lab reports that tested only a sample of the overall quantity.” Dinh, 920 F.3d
at 313.
Additionally, the district court’s finding that Alfonso was transporting
more than 4.5 kilograms of methamphetamine was supported by information
from a confidential source, who informed the HPD that the original drug deal
was for 6 kilograms of methamphetamine. Though this information was not
provided to Alfonso until the PSR addendum was issued, the district court
was permitted to rely on it, as defendants do not have a right to confrontation
at sentencing. See Dinh, 920 F.3d at 312. Alfonso’s allegation of a due
process violation is also unfounded, as the PSR addendum was issued 38 days
prior to sentencing. See Fed. R. Crim. P. 32(g); cf. United States v.
Johnson, 956 F.3d 740, 744 (5th Cir. 2020). Accordingly, the district court’s
finding that Alfonso was accountable for 4.5 kilograms or more of
methamphetamine is not clearly erroneous. See Rico, 864 F.3d at 383.
For these reasons, the judgment of the district is AFFIRMED.
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