United States v. Domio

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 15, 1998
• Docket: 97-40687
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40687 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEVIN DEVON DOMIO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:96-CR-120-1 - - - - - - - - - -

April 10, 1998

Before JOLLY, JONES, and DUHÉ, Circuit Judges.

PER CURIAM:*

Devin Devon Domio appeals his sentence in his guilty-plea

conviction for possession with intent to distribute a controlled

substance. He contends that the information in the PSR was

unreliable and that the PSR relied on multiple hearsay.

Domio bears the burden of proving that the information in

the PSR is inaccurate or unreliable. United States v. Angulo,

927 F.2d 202, 205 (5th Cir. 1991). If hearsay evidence has

sufficient indicia of reliability to support its probable

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-40687 -2-

accuracy, a district court may consider it when making sentencing

decisions. United States v. Billingsley, 978 F.2d 861, 866 (5th

Cir. 1992). Domio admitted his conduct in selling crack cocaine

to his customers every 7 to 10 days. These customers included

various persons who in turn informed the confidential informant

that the source of their crack cocaine was Domio. Thus, the

hearsay and the PSR had a sufficient indicia of reliability. See

United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994).

Further, Domio has submitted no evidence to contradict the

information in the PSR. In the absence of any rebuttal evidence,

the district court was not clearly erroneous in relying on the

PSR, even if the PSR relied on hearsay. See United States v.

Vital, 68 F.3d 114, 120 (5th Cir. 1995).

Accordingly, the district court did not clearly err in

calculating Domio’s relevant conduct. See United States v.

Mergerson, 4 F.3d 337, 345 (5th Cir. 1993).

AFFIRMED.