United States v. Erbstoesser ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50065
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WOLFGANG ERBSTOESSER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(98-CR-141-1)
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October 5, 1999
Before POLITZ, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Wolfgang Erbstoesser appeals from his
sentence following his guilty-plea conviction for conspiracy to
possess with intent to distribute MDMA and cocaine, possession with
intent to distribute MDMA, and importation of MDMA. He first
argues that the district court clearly erred by attributing one
pound of crystal methamphetamine to him as relevant conduct,
contending that evidence of the methamphetamine sale was
insufficiently reliable and that the sale of methamphetamine did
*
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that this opinion should not be published and is not precedent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.
not qualify as relevant conduct. He also asserts that the district
court clearly erred by applying a two-level leadership adjustment
to his sentence, pursuant to U.S.S.G. § 3B1.1(c). Factual findings
made by a sentencing court must be supported by a preponderance of
the evidence and are upheld unless clearly erroneous. United
States v. McCaskey, 9 F.3d 368, 372 (5th Cir. 1993). The
sentencing court’s interpretations of the guidelines are reviewed
de novo. Id.Evidence of Erbstoesser’s methamphetamine sale was obtained
from interviews conducted by DEA agents and was corroborated by
Erbstoesser’s own statements to the DEA agents. The evidence was
therefore sufficiently reliable for sentencing purposes. See
United States v. Shacklett, 921 F.2d 580, 584-85 (5th Cir. 1991).
Although Erbstoesser argued against the inclusion of the
methamphetamine sale as relevant conduct and the imposition of the
leadership adjustment at sentencing, he failed to present any
rebuttal evidence as to either issue. Erbstoesser has therefore
failed to show that the district court clearly erred by adopting
the PSR’s factual findings regarding these issues. See United
States v. Rogers, 1 F.3d 341, 345 (5th Cir. 1993)(no clear error
shown when defendant failed to present evidence to rebut PSR’s
finding regarding relevant conduct). As we affirm the sentence
imposed by the district court, we need not consider Erbstoesser’s
request for a remand for the sentencing court to apply the “safety
valve provision.”
AFFIRMED.
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