United States v. Silva-Olivas

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2003
• Docket: 02-50896
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 10, 2003

Charles R. Fulbruge III Clerk No. 02-50896 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO SILVA-OLIVAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-2107-2 --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Alfredo Silva-Olivas (Silva) appeals his sentence following

pleading guilty to bribery of a public official, conspiracy to

import 1000 kilograms or more of marijuana, and four counts of

importation of 100 kilograms or more of marijuana. He argues

that the district court erred when it found that he was a leader

or organizer under U.S.S.G. § 3B1.1. The district court’s

determination that a defendant is an organizer or leader

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50896 -2-

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).

For sentencing purposes, the district court may consider

“any information which has sufficient indicia of reliability

to support its probable accuracy.” United States v. Vital,

68 F.3d 114, 120 (5th Cir. 1995) (quotation and citation

omitted). A presentencing report (PSR) is considered reliable

evidence for sentencing purposes. Id. Silva’s PSR contained

ample information supporting the district court’s determination

that Silva was a leader. The district court did not clearly err

when it determined, based on the information in Silva’s PSR, that

he was a leader or organizer of his drug smuggling ring.

Silva also argues that the district court failed to comply

with FED. R. CRIM. P. 32(c)(1) when it sentenced him, by not

orally adopting the findings in the PSR. A court need not “make

a catechismic regurgitation of each fact determined;” “the

district court [may] make implicit findings by adopting the PSR.”

United States v. Duncan, 191 F.3d 569, 575 (5th Cir. 1999).

“This adopting will operate to satisfy the mandate of Rule 32

when the findings in the PSR are so clear that the reviewing

court is not left to second-guess the basis for the sentencing

decision.” Id. The district court overruled Silva’s objection

and adopted the PSR which clearly states that Silva was one of

two heads of a drug smuggling operation. The district court No. 02-50896 -3-

satisfied the mandate of Rule 32(c)(1). The judgment of the

district court is AFFIRMED.