Summary Calendar UNITED STATES OF AMERICA v. KENNETH WAYNE WALKER, JR, also known as Li’l Crazy

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
September 26, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11332
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH WAYNE WALKER, JR,
also known as Li’l Crazy,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
4:06-CR-79-3
Before GARWOOD, GARZA and OWEN, Circuit Judges.
PER CURIAM:*
Kenneth Wayne Walker appeals his sentence following his guilty plea
conviction for distribution of 1.51 grams of crack cocaine. The district court in
November 2006 sentenced Walker to 240 months in prison largely based on the
presentence report (PSR) calculation of the advisory guideline sentencing range
of 292-365 months, capped at the statutory maximum of 240 months.

-- 1 of 4 --

No. 06-11332
2
Walker argues that the district court erred by adopting the PSR’s drug
quantity finding because the only basis for the amount of crack cocaine
attributed to him was hearsay information provided by codefendants. Walker
contends that the hearsay information did not bear a sufficient indicia of
reliability because it was uncorroborated and contradictory. Walker also asserts
that his codefendants had a motive to lie in their statements to the Government
and that, therefore, the information they provided is unreliable.
After United States v. Booker, 543 U.S. 220 (2005), this court continues to
review the district court’s interpretation and application of the Guidelines de
novo and its factual findings for clear error. United States v. Villanueva, 408
F.3d 193, 202, 203 & n.9 (5th Cir. 2005). A district court’s calculation of the
quantity of drugs involved in an offense is a factual finding that is entitled to
considerable deference and will be reversed only if clearly erroneous. See United
States v. Betancourt, 442 F.3d 240, 246 (5th Cir. 2005). A factual finding is not
clearly erroneous if it is plausible in light of the record as a whole. Id.
In making factual findings, the district judge may consider any
information that has “sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a), p.s.: Betancourt, 442 F.3d at 247. “[A] district
court may adopt the facts contained in a PSR without further inquiry if those
facts have an adequate evidentiary basis with sufficient indicia of reliability and
the defendant does not present rebuttal evidence or otherwise demonstrate that
the information in the PSR is unreliable.” United States v. Cabrera, 288 F.3d
163, 173-74 (5th Cir. 2002).
While Walker’s PSR is based primarily on the hearsay of codefendants, a
district court may consider hearsay evidence to make factual findings at
sentencing. See United States v. Valdez, 453 F.3d 252, 266-67 (5th Cir.), cert.
denied, 127 S.Ct. 456 (2006). Furthermore, the court may rely on information
provided by codefendants provided the information bears the minimum indicia

-- 2 of 4 --

No. 06-11332
3
of reliability. See United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992). In
the instant case, the codefendants’ statements corroborated one another and the
information the codefendants provided was consistent with the drug trafficking
activities observed, and testified to, by law enforcement. Furthermore, any
inconsistencies in the codefendants’ statements about the extent and duration
of Walker’s drug trafficking do not undermine the reliability of the PSR’s
quantity determination. United States v. Davis, 76 F.3d 82, 85 (5th Cir. 1996)
(finding that the district court “was free to evaluate” the conflicting testimony
of a witness regarding the number of times he bought drugs from the defendant).
The district court concluded that Walker’s codefendants provided credible and
reliable information and we defer to the district court’s credibility
determinations. See United States v. Ocana, 204 F.3d 585, 593 (5th Cir. 2000).
Furthermore, although Walker contends that the information contained
in the PSR is unreliable, he failed (except as noted below) to present any rebuttal
evidence to contradict the PSR’s drug-quantity determinations. Therefore,
Walker has not demonstrated that the PSR’s attribution to him of approximately
one kilogram of crack cocaine was incorrect or based on materially untrue
information. United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995) (“The
defendant bears the burden of showing that the information in the PSR relied
on by the district court is materially untrue.”). Consequently, he cannot show
that the court’s adoption of the PSR’s drug quantity information was clearly
erroneous.
It was stipulated in open court at the sentencing hearing that beginning
sometime in June 2005 (following the June 13, 2005 sale alleged in the
indictment) Walker was “in jail” for a period of “up to 45 days.” Walker argues
that this renders unreliable the PSR’s calculation for relevant conduct purposes
of 1.08 kilograms of crack cocaine having been sold by Walker during the some
36 weeks from March to November 2005, based on an assumed 30 grams per

-- 3 of 4 --

No. 06-11332
1 Based on a criminal history category III, a 2 level obstruction of justice adjustment
and denial of an acceptance of responsibility adjustment, none of which Walker has challenged
on appeal.
4
week. No reversible error is shown. The district court was plainly aware of the
stipulation and had before it sufficient evidence to conclude that Walker was
selling at a rate at least as high as approximately 40 grams a week. In any
event, even if it is assumed that Walker sold only at a rate of 30 grams a week
for only 29 weeks (and that he was in jail a full 45 days), for a total of 870 grams,
it clearly would have made no difference in his sentence or the appropriate
advisory guideline range. The PSR calculated Walker’s base offense level under
U.S.S.G. § 2D1.1(c)(2), which provides for a base offense level of 36 for at least
500 grams but less than 1.5 kilograms of cocaine base. The same base offense
level would be applicable whether the quantity was 870 grams (or 500 grams)
or 1.08 kilograms, and the same advisory guideline range would have applied.
The PSR ultimately calculated an advisory guideline range of 292 to 365
months,1 but the statutory maximum sentence of 240 months (21 U.S.C. §
841(b)(1)(c)) being lower, 240 months became the advisory guideline sentence.
U.S.S.G. § 5G1.1(a).
AFFIRMED.

-- 4 of 4 --