* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-20393

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE W ROBINSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(CR-H-94-121-4)

February 4, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff George W. Robinson appeals his conviction of and

sentence for conspiracy to possess with intent to distribute

cocaine, cocaine base, and marijuana in violation of 21 U.S.C. §§

841 and 846. We affirm.

I

The government named Robinson in counts one and fourteen of a
-2-

fifteen-count second superseding indictment charging fourteen

people with drug conspiracy (count one), conspiracy to launder drug

proceeds (count fourteen), and various substantive drug offenses.

Robinson signed a plea agreement on January 30, 1995, in which he

agreed to plead guilty to count one in exchange for the dismissal

of count fourteen. The plea agreement stated that it was an

agreement pursuant to United States Sentencing Commission,

Guidelines Manual, § 5K1.1 (1995) [hereinafter USSG], which would

require the government to move for a downward departure if, in the

United States Attorney’s opinion, Robinson rendered substantial

assistance to the government. The agreement extensively defined

substantial assistance by Robinson and retained the government’s

sole discretion in making a § 5K1.1 motion.

On May 27, 1995, subsequent to Robinson’s conviction in this

case and while Robinson was on bond, law enforcement officers

stopped a vehicle driven by Robinson and confiscated approximately

$16,000 in cash upon which a drug-detection dog alerted. Also

while on bond, Robinson sold crack cocaine to an undercover

narcotics agent on June 13, 1995. On August 9, 1995, Robinson was

arrested in connection with the June 13 drug transaction. The PreSentence Report (“PSR”) prepared for the instant case reflected

these events.

In his objections to the PSR, Robinson claimed that the

government breached the plea agreement by failing to move for a
 

2 This meeting occurred prior to the signing of the plea agreement.

Dies testified that the purpose of this meeting was for the government to

evaluate whether the § 5K1.1 provision should be included in the plea agreement.

-3-

downward departure based on Robinson’s substantial assistance. He

also objected to a two-level adjustment to his offense level for

his leadership role in the count of conviction.

After once postponing sentencing to permit the government to

respond to Robinson’s claim of breach of the plea agreement, the

district court took testimony from government prosecutors regarding

whether Robinson had been given an opportunity to provide

assistance. Assistant United States Attorney Kenneth Dies

testified that he met with Robinson and his counsel in January 1995

to determine whether Robinson possessed information that could be

helpful to the government.2 Assistant United States Attorney

Martha Vara testified that she met with Robinson and counsel in

February 1995 to discuss any information Robinson might possess and

that she made numerous efforts to reach Robinson by telephone at

his home and through his attorney. She also testified that she

obtained Robinson’s telephone number from him in order to reach him

later after unexpectedly meeting him of the Houston courthouse in

mid-March 1995.

Dies testified that he did not call Robinson as a witness in

a related prosecution because he had adequate testimony from three

other witnesses that did not require additional corroboration.

After learning of Robinson’s August 1995 arrest and the allegations
-4-

of Robinson’s ongoing drug trafficking, Dies did not contact

Robinson again because, in Dies’ opinion, Robinson had no

credibility and his cooperation could not be helpful to the

government.

The district court found that the government had made efforts

to contact Robinson; that government prosecutors had interviewed

Robinson to determine his value to a related prosecution; that the

prosecutors had decided, in their discretion, that Robinson’s

testimony would not be of “additional value” to the government; and

that Robinson’s August 1995 arrest and the subsequent drug charges

against Robinson “create[d] a change in circumstances” that

supported the government’s discretionary judgment to view Robinson

as unable to provide substantial assistance. Thus, the district

court denied Robinson’s requests for specific performance of the

§ 5K1.1 provision of the plea agreement and for withdrawal of his

guilty plea.

The district court also denied Robinson’s objection to the PSR

regarding his leadership role in the offense. The court sentenced

Robinson within the applicable guideline range to 210 months of

imprisonment.

II

Robinson first argues that the government breached the plea

agreement by failing to make a § 5K1.1 motion for a downward

departure. Whether the government’s actions have breached the
-5-

terms of a plea agreement is a question of law we review de novo.

United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996). The

proper inquiry is whether the government’s conduct comports with

the parties’ reasonable understanding of the agreement. Id. The

defendant bears the burden of demonstrating the underlying facts

that establish the breach by a preponderance of the evidence. Id.

Where, as here, the plea agreement expressly states that the

government retains “sole discretion” over the decision whether to

make a § 5K1.1. motion, we have held that a refusal to do so is

reviewable only for unconstitutional motive. Id. at 368.

Robinson concedes that the government retained discretion to

determine whether a § 5K1.1 motion was warranted, but he argues

that the plea agreement was illusory because the government never

gave him an opportunity to provide assistance. This claim lacks

merit, however, because the government gave Robinson an opportunity

to provide assistance by interviewing him and evaluating whether

his testimony could be helpful in a related prosecution. Moreover,

Robinson’s drug trafficking, carried on subsequent to his

acceptance of the plea agreement, supports the government’s

discretionary decision that Robinson could not provide substantial

assistance deserving of a § 5K1.1 motion. Robinson does not

contend that the government’s refusal to move for a § 5K1.1

departure was based upon an unconstitutional motive. Therefore, we

find that the government did not breach the plea agreement. Price,
-6-

95 F.3d at 368.

Robinson next argues that the district court erred in

adjusting his offense level by two for his role as a leader in the

offense. We review for clear error a district court’s factual

finding that a defendant was a leader/organizer pursuant to USSG

§ 3B1.1. United States v. Ayala, 47 F.3d 688, 689-90 (5th Cir.

1995). Factual findings are not clearly erroneous if they are

plausible in light of the record read as a whole. Id. at 690. 

Generally, a PSR bears sufficient indicia of reliability to

permit the sentencing court to rely on it at sentencing. Id. The

defendant bears the burden of demonstrating that the PSR is

inaccurate; in the absence of rebuttal evidence, the sentencing

court may properly rely upon the PSR and adopt it. Id. The court

is free to disregard a defendant’s unsworn assertions that the PSR

is unreliable. Id.

Here, the district court relied on the PSR that described

Robinson’s crack-distribution organization to find that Robinson

deserved a two-level upward adjustment for his leadership role in

the offense. The information in the PSR is based upon police

reports detailing undercover crack purchases from Robinson or his

associates, who were named in the reports. Robinson contends that

this information was insufficient to warrant a two-level increase

for leadership role because it is based on an unsworn police report

and is silent as to activities of Robinson’s underlings in the
-7-

organization. Robinson has not, however, demonstrated that the PSR

is inaccurate; the district court had no obligation to credit

Robinson’s unsworn assertions that the PSR was unreliable.

AFFIRMED.