United States v. Sergio Perez , 442 F. App'x 952 ( 2011 )

Case: 09-10520 Document: 00511618999 Page: 1 Date Filed: 09/30/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2011
No. 09-10520
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERGIO PEREZ,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-185-4
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Sergio Perez pleaded guilty to conspiracy to possess with the intent to
distribute five kilograms or more of cocaine. The district court found that Perez
gave false testimony with the intent to influence his sentence, added two levels
to the base offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1,
and denied a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
The district court sentenced him to 235 months of imprisonment to be followed
by a five-year term of supervised release.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 09-10520 Document: 00511618999 Page: 2 Date Filed: 09/30/2011
No. 09-10520
He challenges the drug quantity calculated by the district court based on
the information contained in the presentence report (PSR). The district court’s
determination of the quantity of drugs attributable to a defendant for purposes
of § 2D1.1 is a factual finding made under the preponderance of the evidence
standard reviewed for clear error. United States v. Betancourt, 422 F.3d 240,
246-47 (5th Cir. 2005). A district court may rely on the information in a PSR in
the absence of rebuttal evidence. United States v. Ollison, 555 F.3d 152, 164 (5th
Cir. 2009). The only rebuttal evidence presented to the information in the PSR
was the testimony of Perez that he did not regularly deal in kilogram quantities
of cocaine. The district court found that this testimony was false. Great
deference is given to a district court’s credibility determinations. United States
v. Powers, 168 F.3d 741, 753 (5th Cir. 1999). The district court did not err in
relying on the information in a PSR in the absence of any credible rebuttal
evidence.
Perez argues that the district court erred in imposing an offense level
increase for obstruction of justice and in denying a reduction for acceptance of
responsibility because the district court delegated the determination as to his
codefendant’s credibility to the police officer testifying at sentencing. With
respect to obstruction of justice, the increase is reviewed for clear error, and will
not be set aside absent this court’s “definite and firm conviction that a mistake
has been committed.” United States v. Pofahl, 990 F.2d 1456, 1481, 1488 (5th
Cir. 1993). The district court found that Perez knowingly had given false
testimony for the purpose of influencing his sentence. Perez has not shown that
this finding was clearly erroneous. With respect to the denial of credit for
acceptance of responsibility, Perez has not shown that it was without foundation.
See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008).
AFFIRMED.
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