IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10227

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

SERGIO GODINEZ, also known as E. T.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CR-208

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant pled guilty as charged in the indictment with 

conspiracy to possess with intent to distribute 100 grams or more of heroin. 

The district court imposed a sentence of 180 months’ imprisonment and a 4-

year term of supervised release. We affirm. 

I. FACTS & PROCEDURAL HISTORY

Defendant-Appellant Sergio Godinez was charged by indictment with 

conspiracy to possess with intent to distribute 100 grams or more of a mixture 

and substance containing a detectable amount of heroin in violation of 21 

 

* 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

FILED

February 29, 2016

Lyle W. Cayce

Clerk

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U.S.C. § 846. In accordance with a plea agreement, he pled guilty to that 

offense. In determining his base offense level at sentencing, the district court 

held Godinez accountable for heroin and methamphetamine amounts that had 

a marihuana equivalency of 6,433.2 kilograms. Based on that drug quantity, 

Godinez had a base offense level of 32 pursuant to the Sentencing Guidelines 

drug quantity table. See U.S.S.G. § 2D1.1(c)(4) (applying base offense level of 

32 to offenses involving “[a]t least 3,000 KG but less than 10,000 KG of 

Marihuana”). The drug amounts for which Godinez was held responsible 

included 1,275 grams of heroin and 1,275 grams of methamphetamine that he 

allegedly obtained from an unidentified confidential informant (“CI”). 

Godinez objected to the use of the information provided by the CI because 

it was uncorroborated and unsupported by other information or evidence. The 

district court overruled the objection at sentencing. In the Presentence Report

(“PSR”) addendum, the Government stated that the information regarding the 

drug quantities in Paragraphs 19 and 20 was provided by a CI that law 

enforcement had deemed reliable, and that reliability was further confirmed 

by an interview between the Probation Officer (“PO”) who compiled the PSR

and the case agent. The Government also stated that the case agent would be 

available to testify as to the reliability of the information provided by the CI.1

The district court also applied a 2-level sentencing enhancement 

pursuant to U.S.S.G. § 2D1.1(b)(5) based on a finding that Godinez knew that 

the methamphetamine involved in the offense was imported from Mexico. The 

district court also applied a 2-level enhancement pursuant to § 2D1.1(b)(12) 

because Godinez maintained a premises for the purpose of manufacturing and 

distributing a controlled substance.2 Additionally, Godinez received a 3-level

 

1 For reasons that are unclear from the record, the case agent never testified at 

sentencing.

2 Godinez does not challenge this particular enhancement on appeal.

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reduction due to acceptance of responsibility. With a criminal history category 

of II, the total offense level was calculated to be 35, resulting in a Guidelines 

range of 188 to 235 months. 

The district court imposed a sentence of 180 months’ imprisonment 

followed by a 4-year term of supervised release. In imposing this sentence, the 

district court varied downward from the Guidelines range in order to give 

Godinez credit for time served on a related case. The district court clarified 

that it had extensively considered the Section 3553(a) sentencing factors and 

found the 180-month sentence imposed to be appropriate in light of “all of the 

facts and circumstances.” See 18 U.S.C. § 3553(a). It went on to state that the 

sentence would provide just punishment and protect the public from Godinez’s 

future criminal activity, pointing to the large amount of heroin at issue and 

Godinez’s possession of an AK-47. The district court expressed that even if it 

had erred in overruling any of Godinez’s objections, it would have nevertheless 

imposed the same sentence in light of the Section 3553(a) sentencing factors. 

Godinez filed this appeal challenging the district court’s calculation of 

drug quantities contained in Paragraph 19 of the PSR and the 2-level 

enhancement applied pursuant to § 2D1.1(b)(5), based on the drugs at issue 

having been imported from Mexico.

II. DISCUSSION

We review the sentence imposed for abuse of discretion. Gall v. United 

States, 552 U.S. 38, 51 (2007). We must “ensure that the district court 

committed no significant procedural error, such as failing to calculate (or 

improperly calculating) the Guidelines range.” Id. The district court’s 

interpretation and application of the Guidelines are reviewed de novo, while 

its factual findings are reviewed for clear error. United States v. HernandezGalvan, 632 F.3d 192, 196 (5th Cir. 2011) (citation and internal quotation 

marks omitted). If the court finds a significant procedural error, it must 

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remand for resentencing unless the error was harmless. United States v. 

Delgado-Martinez, 564 F.3d 750, 752–53 (5th Cir. 2009). 

A. Drug Quantity

Godinez’s first argument on appeal pertains to the drug quantities 

calculated by the district court wherein it relied on the information conveyed 

in Paragraph 19 of the PSR that was provided by the CI. He argues that the 

CI’s out-of-court statements attributing the drug quantities to him were not 

sufficiently corroborated by anything in the record.3 We disagree. 

The quantity of drugs attributable to a defendant includes both drugs 

with which the defendant was directly involved and drugs that can be 

attributed to him in a conspiracy as part of his “relevant conduct” under 

U.S.S.G. § 1B1.3(a)(1)(B). See United States v. Duncan, 191 F.3d 569, 576 (5th 

Cir. 1999). The district court’s determination of drug quantity for sentencing 

purposes is a factual finding that this court reviews for clear error. See United 

States v. Harris, 740 F.3d 956, 966–67 (5th Cir. 2014) (citation omitted). A 

factual finding is not clearly erroneous if it is plausible in light of the record 

read as a whole. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 

(5th Cir. 2008) (citation omitted).

In making factual determinations at sentencing, the district court “may 

consider relevant information without regard to its admissibility under the 

rules of evidence applicable at trial, provided that the information has 

sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 

6A1.3(a), p.s. This court has interpreted this specific guideline as requiring 

that all facts used for sentencing purposes be “reasonably reliable.” United 

States v. Shacklett, 921 F.2d 580, 584–85 (5th Cir. 1991). “[T]he district court 

 

3 Godinez makes no argument regarding the cause for non-disclosure of the CI’s 

identity and instead focuses on the lack of corroboration for the CI’s statements. 

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has significant discretion in evaluating reliability.” United States v. Young, 

981 F.2d 180, 185 (5th Cir. 1992) (citation omitted). “Out-of-court declarations 

by an unidentified informant may be considered where there is good cause for 

the non-disclosure of the informant’s identity and there is sufficient 

corroboration by other means.” Id. at § 6A1.3, p.s., commentary; see United 

States v. Rogers, 1 F.3d 341, 343–44 (5th Cir. 1993).

A PSR generally bears sufficient indicia of reliability to be considered as 

evidence by a sentencing judge when making factual determinations. United 

States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir. 1998) (citation omitted). 

However, “[b]ald, conclusionary statements do not acquire the patina of 

reliability by mere inclusion in the PSR.” Id. (internal quotation marks and 

citation omitted). When such statements lack corroboration, this court cannot 

assure itself that “the PSR contains sufficient indicia of reliability.” Id.

Paragraph 19 of the PSR states:

From March 2012 to August 2013, Godinez used four known 

suppliers. His most significant relationship occurred in 2012 with 

an unindicted individual whose name is redacted. For six months, 

in 2012, Godinez received deliveries from this individual. These 

deliveries consisted of 1⁄4 ounce of heroin and 1⁄4 ounce of 

methamphetamine, per trip, and happened as often as two or three 

times per day. Using a conservative estimate of 1⁄4 ounce of heroin 

and methamphetamine, once per day, for a period of six months, 

Godinez received 1,275 grams of heroin and 1,275 grams of 

methamphetamine from this individual.

(emphasis in original). According to the record, in preparing the PSR, the PO

gathered information from the indictment, Godinez’s factual resume, 

investigative material compiled and prepared by law enforcement officers, and 

an interview with the case agent. In his interview with the PO, the case agent 

clarified and corroborated the information contained in the investigative 

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material used to compile the PSR. Additionally, law enforcement officers 

represented that they deemed the CI to be reliable. 

The information in Paragraph 19 was also corroborated by other 

information contained in the PSR, including a description of a controlled drug 

buy at Godinez’s home and information gathered from other sources4 and 

codefendants about Godinez’s extensive involvement in drug-trafficking, 

including the overall scheme of conduct and the roles of the various 

coconspirators. See Rogers, 1 F.3d at 343–44 (finding no clear error in relying 

on confidential informants’ hearsay reports that were partially incorrect but 

partially corroborated by extensive government investigation). Finally, the 

amount of drugs concluded to be at issue in Paragraph 19, as relied on by the 

district court, was estimated conservatively relative to the initially described

representations of the CI, i.e., a quarter ounce of heroin and 

methamphetamine, once per day, for six months, as opposed to a quarter ounce 

of heroin and methamphetamine, two to three times per day, for six months.

See Young, 981 F.2d at 184–86 (finding no clear error where the district court 

relied on double and triple hearsay from CIs corroborated and vouched for by 

two police officers, but halved the amount of drugs attributed to each defendant 

in order to account for possible exaggeration). 

In light of the PO’s interview with the case agent wherein the agent 

clarified and corroborated the information found in the investigative material 

relied upon to compile the PSR, we hold that the information contained 

therein, including the description of the CI’s involvement as contained in 

Paragraph 19, is “reasonably reliable.” Shacklett, 921 F.2d at 585. Further, 

given that law enforcement officers deemed the CI reliable and the district 

court’s “significant discretion in evaluating [the] reliability” of that 

 

4 The identities of these sources are also protected. 

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information, we see no clear error in its calculation of the drug quantities, 

relying on the information contained in Paragraph 19 of the PSR. See Young, 

981 F.2d at 185. 

B. Importation Enhancement

Next, Godinez challenges the district court’s application of a 2-level 

enhancement pursuant to U.S.S.G. § 2D1.1(b)(5)5 based on its finding that 

Godinez knew that the methamphetamine involved in the offense was 

imported from Mexico. Godinez does not dispute that the methamphetamine 

in this case was imported from Mexico, but rather, he asserts that there is no 

evidence that he had any personal knowledge regarding the importation of the 

drugs.

This court has held that the enhancement applies “regardless of whether 

the defendant had knowledge of that importation.” United States v. Serfass, 

684 F.3d 548, 552 (5th Cir. 2012). Thus, Godinez’s argument that he had no 

personal knowledge of the importation of the drugs is foreclosed by binding 

precedent which we decline to revisit herein. Id.; see also United States v. 

Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002) (holding that a panel of this 

court may not overrule a decision made by a prior panel absent en banc 

consideration, a change in relevant statutory law, or an intervening decision 

by the Supreme Court). Accordingly, we uphold the district court’s application 

of the 2-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(5). See Serfass, 

684 F.3d at 552.

III. CONCLUSION

For the aforementioned reasons, we affirm the sentence imposed by the 

district court in all respects. 

 

5 If the offense of conviction “involved the importation of amphetamine or 

methamphetamine,” a defendant’s base offense level is increased by two levels. 

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