United States v. Castro

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 7, 2002
• Docket: 01-20516
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20516 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE ELIECER CASTRO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-30-1 -------------------- March 6, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Jorge Eliecer Castro appeals the sentence imposed following

his guilty-plea conviction for conspiracy to possess with intent

to distribute cocaine and cocaine base, in violation of 21 U.S.C.

§§ 841(a) and 846. Castro argues that the district court erred

by enhancing his offense level pursuant to U.S.S.G. § 3B1.1(a)

for his role as an organizer or leader. He additionally asserts

that the district court erred in holding him accountable for 50

kilograms of cocaine based on information from a Government

informant.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20516 -2-

The district court’s determination that a defendant is an

organizer or leader under § 3B1.1 is a factual finding which this

court will disturb only if it is clearly erroneous. United

States v. Ayala, 47 F.3d 688, 689-90 (5th Cir. 1995). Generally,

a presentence report (PSR) bears sufficient indicia of

reliability to be considered as evidence by the sentencing judge

when making factual determinations. United States v. Alfaro, 919

F.2d 962, 966 (5th Cir. 1990). A close examination of the PSR

shows that it contained sufficient factual findings to support

the leadership adjustment. See U.S.S.G. § 3B1.1(a), comment.

(n.4); Ayala, 47 F.3d at 689-90. The district court’s finding

that Castro was a leader/organizer is not clearly erroneous.

We also review the district court’s determination regarding

the quantity of drugs for clear error. United States v. Alford,

142 F.3d 825, 831 (5th Cir. 1998). The sworn testimony of

unindicted co-conspirator Jimmy Escalante provided sufficient

corroboration for the statements Escalante made to investigative

agents regarding the amount of drugs he was hired by Castro to

distribute. See United States v. Morris, 46 F.3d 410, 425 (5th

Cir. 1995). Furthermore, Castro cannot now complain, for the

first time, that he was denied his rights of confrontation and

cross-examination and fails to demonstrate plain error. See id.

at 423; United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1994)(en banc), abrogated in part, Johnson v. United States, 520

U.S. 461 (1997). The district court’s finding that Castro was

accountable for the 50 kilograms of cocaine was not clearly

erroneous.

AFFIRMED.