IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-51221 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO ARTURO RODRIGUEZ-DIAZ,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-98-CR-733-DB-5 -------------------- September 21, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ernesto Rodriguez-Diaz appeals the 140-month sentence
imposed on him after he pleaded guilty to conspiracy to import
cocaine and conspiracy to possess cocaine with the intent to
distribute. He argues that the district court clearly erred in
sentencing him on the basis of the 200-kilogram deal he
negotiated rather than the six kilograms that were seized prior
to and at his arrest. He also argues that the sentencing court
erred in finding that he was not a minor participant in the
conspiracy.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-51221 -2-
The Government has filed a motion to supplement the record
with the transcripts of a suppression hearing and the trial of
one of Rodriguez’s codefendants. The motion notes that in
denying Rodriguez’s objection about the drug quantity, the
district court relied on the evidence it had heard about the
transaction during these other proceedings. The Government did
not submit copies of these transcripts with its motion.
We review de novo the legal conclusions made by a sentencing
court. United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.
1993). Findings of fact are reviewed for clear error. Id. The
district court’s determination of the amount of drugs
attributable to Rodriguez as well as its determination of his
role in the conspiracy are accordingly reviewed only for clear
error. United States v. Posada-Rios, 158 F.3d 832, 878 (5th
Cir.), cert. denied, 119 S. Ct. 1280 (1998). A presentence
report (PSR) generally bears sufficient indicia of responsibility
to be considered as evidence by a sentencing judge when making
factual determinations. United States v. Narviz-Guerra, 148 F.3d
530, 537 (5th Cir.), cert. denied, 119 S. Ct. 601 (1998). When a
district court has relied on information contained in a PSR, the
defendant bears the burden of demonstrating that the information
is unreliable or untrue. United States v. Vital, 68 F.3d 114,
120 (5th Cir. 1995). Information contained in a defendant’s
unsworn objections to a PSR does not constitute competent
evidence. United States v. Huerta, ___ F.3d ___ (5th Cir.
July 27, 1999, No. 98-20812), 1999 WL 544055, at *3. No. 98-51221 -3-
Rodriguez argues that the district court erred in concluding
that his offense involved the 200 kilograms of cocaine that he
negotiated to sell an undercover agent. He contends that he was
not reasonably capable of providing more than, at most, the six
kilograms that were seized by the time of his arrest. See
U.S.S.G. § 2D1.1, comment. (n.12). In rejecting this contention,
the district court relied on testimony it heard during the
proceedings involving the codefendant. Except for the testimony
of one coconspirator, Mario Ramirez, Rodriguez did not include
transcripts of these other proceedings in the record on appeal.
“[T]he appellant bears the burden of creating the record on
appeal.” United States v. Coveney, 995 F.2d 578, 587 (5th Cir.
1993). See also Fed. R. App. P. 11(a). If the record as
compiled by the appellant “does not establish a basis for
reversal, we will affirm.” Coveney, 995 F.2d at 587. If the
record does establish a basis for reversal and the appellee
wishes to rely on some alternative basis for an affirmance, the
burden of compiling a record in support of the alternative theory
is the appellee’s. Id. at 587-88. In that circumstance, a
motion to supplement from the appellee is appropriate. Id. at
587.
To “establish a basis for reversal,” Rodriguez must show
that the district court clearly erred in attributing 200
kilograms of cocaine to him. See, e.g., Vital, 68 F.3d at 120.
In support of his argument, he relies on his own unsworn version
of the events as well as Ramirez’s testimony in the codefendant’s
trial that Ramirez would not have been able to supply 200 No. 98-51221 -4-
kilograms of cocaine. Because Rodriguez’s version of the
transaction was submitted to the district court as part of his
unsworn objections to the PSR, it did not constitute competent
evidence. See Huerta, 1999 WL 544055, at *3.
In addition, Ramirez’s testimony “does not establish a basis
for reversal.” At sentencing, the district court stated that the
evidence it heard in ruling on the codefendant’s motion to
suppress and during the codefendant’s trial supported the PSR’s
finding that Rodriguez was responsible for a 200-kilogram deal.
Without providing the transcripts of these other proceedings and
articulating why it was error to rely on the evidence revealed in
these proceedings, Rodriguez cannot demonstrate that the district
court committed clear error. At the sentencing hearing, the
district court stated that it found Ramirez’s statement to be
self-serving. See United States v. Roberson, 872 F.2d 597, 602
(5th Cir. 1989) (on giving deference to a sentencing court’s
credibility determinations). Rodriguez has given us no reason to
question this assessment. Rodriguez has shown no clear error in
the district court’s reliance on the PSR.
Rodriguez argues that the Eleventh Circuit’s decision in
United States v. Crespo, 982 F.2d 483, 484-85 (11th Cir. 1993),
demonstrates the district court’s error. He relies on language
in that decision suggesting that negotiations between Crespo and
agents about a potential sale were “not sufficient in themselves”
to prove that the defendant was reasonably capable of providing
the amount of drugs negotiated. In a later case, however, that
court stressed that Crespo’s holding was limited. “Our holding No. 98-51221 -5-
in Crespo,” stated the court, “was simply that under the facts of
that case, the district court was not clearly erroneous in its
conclusion that Crespo was unable to produce the negotiated
amount.” United States v. Jones, 36 F.3d 1068, 1070 (11th Cir.
1994). Likewise, we have never held that it was error for a
sentencing court, in determining the quantity of drugs an offense
involved, to rely solely on negotiations between a defendant and
agents.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 98-51221 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO ARTURO RODRIGUEZ-DIAZ,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-98-CR-733-DB-5 -------------------- September 21, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ernesto Rodriguez-Diaz appeals the 140-month sentence
imposed on him after he pleaded guilty to conspiracy to import
cocaine and conspiracy to possess cocaine with the intent to
distribute. He argues that the district court clearly erred in
sentencing him on the basis of the 200-kilogram deal he
negotiated rather than the six kilograms that were seized prior
to and at his arrest. He also argues that the sentencing court
erred in finding that he was not a minor participant in the
conspiracy.
* 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. 98-51221 -2-
The Government has filed a motion to supplement the record
with the transcripts of a suppression hearing and the trial of
one of Rodriguez’s codefendants. The motion notes that in
denying Rodriguez’s objection about the drug quantity, the
district court relied on the evidence it had heard about the
transaction during these other proceedings. The Government did
not submit copies of these transcripts with its motion.
We review de novo the legal conclusions made by a sentencing
court. United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.
1993). Findings of fact are reviewed for clear error. Id. The
district court’s determination of the amount of drugs
attributable to Rodriguez as well as its determination of his
role in the conspiracy are accordingly reviewed only for clear
error. United States v. Posada-Rios, 158 F.3d 832, 878 (5th
Cir.), cert. denied, 119 S. Ct. 1280 (1998). A presentence
report (PSR) generally bears sufficient indicia of responsibility
to be considered as evidence by a sentencing judge when making
factual determinations. United States v. Narviz-Guerra, 148 F.3d
530, 537 (5th Cir.), cert. denied, 119 S. Ct. 601 (1998). When a
district court has relied on information contained in a PSR, the
defendant bears the burden of demonstrating that the information
is unreliable or untrue. United States v. Vital, 68 F.3d 114,
120 (5th Cir. 1995). Information contained in a defendant’s
unsworn objections to a PSR does not constitute competent
evidence. United States v. Huerta, ___ F.3d ___ (5th Cir.
July 27, 1999, No. 98-20812), 1999 WL 544055, at *3. No. 98-51221 -3-
Rodriguez argues that the district court erred in concluding
that his offense involved the 200 kilograms of cocaine that he
negotiated to sell an undercover agent. He contends that he was
not reasonably capable of providing more than, at most, the six
kilograms that were seized by the time of his arrest. See
U.S.S.G. § 2D1.1, comment. (n.12). In rejecting this contention,
the district court relied on testimony it heard during the
proceedings involving the codefendant. Except for the testimony
of one coconspirator, Mario Ramirez, Rodriguez did not include
transcripts of these other proceedings in the record on appeal.
“[T]he appellant bears the burden of creating the record on
appeal.” United States v. Coveney, 995 F.2d 578, 587 (5th Cir.
1993). See also Fed. R. App. P. 11(a). If the record as
compiled by the appellant “does not establish a basis for
reversal, we will affirm.” Coveney, 995 F.2d at 587. If the
record does establish a basis for reversal and the appellee
wishes to rely on some alternative basis for an affirmance, the
burden of compiling a record in support of the alternative theory
is the appellee’s. Id. at 587-88. In that circumstance, a
motion to supplement from the appellee is appropriate. Id. at
587.
To “establish a basis for reversal,” Rodriguez must show
that the district court clearly erred in attributing 200
kilograms of cocaine to him. See, e.g., Vital, 68 F.3d at 120.
In support of his argument, he relies on his own unsworn version
of the events as well as Ramirez’s testimony in the codefendant’s
trial that Ramirez would not have been able to supply 200 No. 98-51221 -4-
kilograms of cocaine. Because Rodriguez’s version of the
transaction was submitted to the district court as part of his
unsworn objections to the PSR, it did not constitute competent
evidence. See Huerta, 1999 WL 544055, at *3.
In addition, Ramirez’s testimony “does not establish a basis
for reversal.” At sentencing, the district court stated that the
evidence it heard in ruling on the codefendant’s motion to
suppress and during the codefendant’s trial supported the PSR’s
finding that Rodriguez was responsible for a 200-kilogram deal.
Without providing the transcripts of these other proceedings and
articulating why it was error to rely on the evidence revealed in
these proceedings, Rodriguez cannot demonstrate that the district
court committed clear error. At the sentencing hearing, the
district court stated that it found Ramirez’s statement to be
self-serving. See United States v. Roberson, 872 F.2d 597, 602
(5th Cir. 1989) (on giving deference to a sentencing court’s
credibility determinations). Rodriguez has given us no reason to
question this assessment. Rodriguez has shown no clear error in
the district court’s reliance on the PSR.
Rodriguez argues that the Eleventh Circuit’s decision in
United States v. Crespo, 982 F.2d 483, 484-85 (11th Cir. 1993),
demonstrates the district court’s error. He relies on language
in that decision suggesting that negotiations between Crespo and
agents about a potential sale were “not sufficient in themselves”
to prove that the defendant was reasonably capable of providing
the amount of drugs negotiated. In a later case, however, that
court stressed that Crespo’s holding was limited. “Our holding No. 98-51221 -5-
in Crespo,” stated the court, “was simply that under the facts of
that case, the district court was not clearly erroneous in its
conclusion that Crespo was unable to produce the negotiated
amount.” United States v. Jones, 36 F.3d 1068, 1070 (11th Cir.
1994). Likewise, we have never held that it was error for a
sentencing court, in determining the quantity of drugs an offense
involved, to rely solely on negotiations between a defendant and
agents. See United States v. Desimone, 119 F.3d 217, 229 (2d
Cir. 1997) (rejecting such a proposition). Rodriguez has not
shown that the district court relied only on negotiations between
Rodriguez and the undercover officer. At sentencing, the
district court specifically stated that it was relying as well on
discussions among the defendants.
The district court indicated that it was considering all of
the evidence it had heard concerning the conspiracy and that this
evidence “coincide[d] with the probation report.” Further, the
district court observed that negotiations between Rodriguez and
the undercover officer were specific as to the drug quantity and
price. The Second Circuit has held that it is proper to consider
whether negotiations for a drug deal “were sufficiently specific
as to logistical concerns such as price, quantity, and delivery
to constitute a plan rather than an exploratory discussion or
‘mere puffery.’” Desimone, 119 F.3d at 229. We agree. Cf.
United States v. Torres, 114 F.3d 520, 527 (5th Cir. 1997)
(noting that when a government agent proposes a deal, a
sentencing court “should inquire whether the suggested amount is
realistic and doable”). Rodriguez has not shown that the No. 98-51221 -6-
district court relied solely on ambiguous negotiations about a
possible deal. To the contrary, the district court indicated
that it had considered an array of details and that these details
supported the findings in the PSR--that Rodriguez was
participating in what was to be a 200-kilogram deal.
It was Rodriguez’s responsibility to compile a record on
appeal that would “establish a basis for reversal.” Coveney, 995
F.2d at 587. He has not satisfied this responsibility. Because
Rodriguez has shown no clear error on this record, the Government
is not responsible for ensuring that the record is complete
enough to support any of its arguments. Accordingly, the
Government’s motion to supplement the record is DENIED as
unnecessary.
Rodriguez argues that the district court erred in holding
that he was more than a minor participant in the conspiracy.
Under the guidelines, a “minor participant” in an offense is one
who is “less culpable than most other participants.” U.S.S.G.
§ 3B1.2, comment. (n.3). Because most offenses are committed by
participants of roughly equal culpability, the adjustment for
minor participation is to be used sparingly. United States v.
Mitchell, 31 F.3d 271, 278-79 (5th Cir. 1994). To qualify for
the adjustment, a defendant must show that “he at best was
peripheral to the advancement of the illicit activity.” United
States v. Thomas, 932 F.2d 1085, 1092 (5th Cir. 1991).
Rodriguez was not at all “peripheral to the advancement of”
the drug transaction. As the PSR indicated, he repeatedly met
with the undercover officer to negotiate terms and to arrange the No. 98-51221 -7-
deal. Rodriguez introduced Ramirez to the undercover officer.
When he was arrested, Rodriguez was in the process of delivering
the first installment of the deal. Rodriguez has not shown the
district court erred in finding he played more than a minor role
in the offense.
Rodriguez also complains that he should receive the
adjustment because Ramirez did. The record does not clearly
indicate that Ramirez was actually sentenced as a minor
defendant. Regardless, each participant in an offense “must be
separately assessed.” United States v. Thomas, 963 F.2d 63, 65
(5th Cir. 1992). Rodriguez has shown no error.
MOTION TO SUPPLEMENT DENIED; SENTENCE AFFIRMED.