United States v. Garcia

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-11082
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-205-11
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Raymond Garcia appeals his sentence following his guilty
plea conviction for conspiracy to distribute cocaine, marijuana,
and methamphetamine. The district court sentenced Garcia to 135
months in prison based on information in the presentence report
(PSR) that he was responsible for 660 kilograms of cocaine and
440 pounds of methamphetamine, which is the equivalent of more
than 500,000 kilograms of marijuana, pursuant to U.S.S.G.
§ 2D1.1(c)(1).

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No. 05-11082
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Garcia argues that the district court erred by adopting the
PSR’s finding of drug quantity because the only basis for the
amounts of cocaine and methamphetamine was the hearsay
information provided by coconspirators. Although the Sentencing
Guidelines are now advisory, the guideline range must still be
determined in the same manner as before United States v. Booker,
543 U.S. 220 (2005). United States v. Alonzo, 435 F.3d 551,
553-54 (5th Cir. 2006). This court reviews the sentencing
court’s factual findings for clear error and its “interpretation
and application of the sentencing guidelines de novo.” United
States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006).
“As a general rule, information in the pre-sentence report
is presumed reliable and may be adopted by the district court
without further inquiry if the defendant fails to demonstrate by
competent rebuttal evidence that the information is materially
untrue, inaccurate or unreliable.” United States v. Carbajal,
290 F.3d 277, 287 (5th Cir. 2002)(quotation and citation
omitted). Although it is true that Garcia’s PSR is based
primarily on the hearsay of codefendants, Garcia has not
presented any rebuttal evidence to contradict the drug-quantity
statements. Absent rebuttal evidence, Garcia cannot show that
the court’s adoption of the drug quantity information was clearly
erroneous.
AFFIRMED.

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