United States v. Riojas

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 21, 2003
• Docket: 02-20478
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS May 20, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20478 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO RIOJAS, also known as Roberto Riojas-Sandoval,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (H-95-CR-142-1)

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roberto Riojas appeals his life-sentence based upon his

guilty-plea conviction for engaging in a continuing criminal

enterprise and conspiracy to launder monetary instruments. Riojas

contends the prosecutor knowingly failed to disclose that the

presentence investigation report (PSR) contained inaccurate

information and the district court erred in (1) calculating the

amount of marijuana attributed to him for sentencing purposes; and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. (2) denying him an adjustment for acceptance of responsibility.

(Riojas originally claimed the court also erred by enhancing his

sentence for obstruction of justice. Riojas concedes in his reply

brief, however, that the district court did not so enhance his

sentence.)

Because the appeal-waiver provision, here, was broad and

appeal-waiver provisions are construed against the Government, it

does not preclude review of the above issues. United States v.

Somner, 127 F.3d 405, 407-08 (5th Cir. 1997).

Riojas asserts the prosecutor knowingly failed to disclose the

PSR inaccurate information, which was material to his sentence.

The inaccurate information stems from purported discrepancies

between the PSRs for Riojas and codefendant Armando Pena, Jr.

Riojas, however, has not provided this court with a copy of Pena’s,

as is his burden. United States v. Coveney, 995 F.2d 578, 587 (5th

Cir. 1993). Nor is Pena’s PSR part of the district court record.

Because Pena's PSR is not properly before this court, Riojas’s

prosecutorial-misconduct claim fails. See United States v. Flores,

887 F.2d 543, 546 (5th Cir. 1989).

Riojas claims the district court erred in its drug-quantity

calculation. Because a PSR is sufficiently reliable for making

factual determinations and because Riojas offered no contradictory

evidence, the district court did not clearly err by accepting the

PSR's calculation of the amount of drugs attributable to him.

2 United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999), cert.

denied 528 U.S. 1191 (2000).

Riojas contends the district court erred in refusing to reduce

his offense level for acceptance of responsibility. Our review of

a U.S.S.G. § 3E1.1 determination is “even more deferential than a

pure clearly erroneous standard”. United States v. Chapa-Garza, 62

F.3d 118, 122 (5th Cir. 1995). Riojas attempted to minimize his

participation in the offense and downplay his criminal conduct.

See U.S.S.G. § 3E1.1(a); United States v. Wilder, 15 F.3d 1292,

1299 (5th Cir. 1994). There was no error.

AFFIRMED