United States v. Morid

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 14, 2002
• Docket: 01-11438
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11438 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IKECHUKWU NNAMDI MORID, also known as Darlington Ojiagbaje, also known as Joseph Ikecukwu Iwegbu,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:01-CR-198-1-X -------------------- June 13, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Ikechukwu Nnamdi Morid (Morid) appeals from a guilty-plea

conviction for mail fraud. 18 U.S.C. §§ 1341, 2. Morid argues

that the district court erred in imposing a 13-level sentencing

guideline enhancement for the amount of loss and a four-level

leadership role enhancement. He argues that the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11438 -2-

assessed the enhancements based upon unreliable hearsay testimony

in violation of his due process rights.

This court “will uphold the district court’s sentence so

long as it results from a correct application of the guidelines

to the factual findings which are not clearly erroneous.” United

States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991)(citation

omitted). The amount of loss and an adjustment for being a

leader or organizer are findings of fact reviewed for clear

error. Id.; United States v. Chappell, 6 F.3d 1095, 1101 (5th

Cir. 1993).

Morid’s relies upon Bruton v. United States, 391 U.S. 123

(1968), for the proposition that uncorroborated hearsay

statements from co-offenders are inadmissible. Morid’s reliance

is misplaced because Bruton addressed hearsay statements made at

trial; rather, as in Morid’s case, evidence that is inadmissible

at trial may be admissible during sentencing hearings. See

United States v. Rojas-Martinez, 968 F.2d 415, 422 (5th Cir.

1992)(citation omitted). “In general, the [presentence report]

PSR bears sufficient indicia of reliability to be considered as

evidence by the district court, especially when there is no

evidence in rebuttal.” United States v. Londono, 285 F.3d 348,

354 (5th Cir. 2002)(internal quotation omitted). The defendant

bears the burden of demonstrating that the findings contained in

the PSR are “materially untrue, inaccurate, or unreliable.” Id.

(citation omitted). No. 01-11438 -3-

Morid offered no evidence other than unsworn assertions at

the sentencing hearing to rebut the findings in the PSR. Morid’s

unsworn assertions are insufficient rebuttal evidence. See

Chavez, 947 F.2d at 746. Morid has thus failed to show that the

district court’s findings as to the amount of loss and his role

in the offense were clearly erroneous. See id. Accordingly, the

judgment of the district court is AFFIRMED.