United States v. Garza-Galvan , 302 F. App'x 252 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 08-40236
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PABLO GARZA-GALVAN
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-733-1
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Pablo Garza-Galvan (Garza) appeals the 168-month sentence imposed
following his guilty plea conviction for possession with intent to distribute 4,273
kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). He contends that
the district court erred in determining that he had an aggravating role in the
offense pursuant to U.S.S.G. § 3B1.1(a) because the factual conclusions in the
presentence report (PSR) were disputed and unsubstantiated.
*
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should not be published and is not precedent except under the limited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. 08-40236
Garza did not provide any rebuttal evidence to refute the information in
the PSR, nor did he demonstrate that the information was materially untrue.
Thus, the district court was free to adopt the information in the PSR as its
findings without further inquiry or explanation. See United States v. Vital, 68
F.3d 114, 120 (5th Cir. 1995); United States v. Davis, 76 F.3d 82, 84 (5th Cir.
1996). Further, although co-defendants Miguel Angel Sauceda-Franco and Jose
Guadalupe Puente-Ramirez did not corroborate co-defendant Juan Manuel
Sauceda-Franco’s statement that they were hired by Garza, Garza admitted at
the rearraignment hearing that he “possessed, and aided and abetted the
possession of the marijuana by hiring the other co-defendants to package the
marijuana at the stash house.” Therefore, the district court’s determination that
Garza was an organizer or leader of a criminal activity that involved five or more
participants is plausible in light of the record as a whole, and Garza has not
shown clear error. See United States v. Fullwood, 342 F.3d 409, 415 (5th Cir.
2003).
Garza also contends that the district court erred when it denied him a
safety valve reduction. Specifically, he argues that the district court’s
determination that he was not eligible for a safety valve reduction was based on
its erroneous conclusion that he was an organizer or leader. Because the district
court did not clearly err in determining that Garza was an organizer or leader
pursuant to § 3B1.1(a), Garza was ineligible for a safety valve reduction. See
U.S.S.G. § 5C1.2(a)(4). Therefore, Garza has not shown clear error. See United
States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999).
Accordingly, the district court’s judgment is AFFIRMED.
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