IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-40063

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE JAIRO VALENCIA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Louisiana

(93-CR-10012-10)

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(January 26, 1995)

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Jose Jairo Valencia pleaded guilty to conspiracy to distribute

cocaine, count one of an eleven-count indictment which charged

Valencia and his nine codefendants. He appeals his 81-month sentence

of imprisonment, asserting that the district court erred by

increasing his offense level by four levels pursuant to U.S.S.G. §

3B1.1(a) and by attributing to him all the cocaine found in his

apartment when he was arrested. We affirm his sentence.

FACTS

On August 19, 1992, a traffic stop in Allen Parish, Louisiana,

revealed one and one-quarter kilos of cocaine in a vehicle with three

passengers, all named as co-conspirators in count one. One of the

passengers, R.B. Mills, revealed that the cocaine was supplied by

Valencia and that Valencia previously had provided approximately four
2

kilos of cocaine, and that all the cocaine went to an Alexandria,

Louisiana drug ring headed by Aaron Bruce Williams (hereinafter

referred to as "the Williams organization", or "the Williams group").

Valencia admitted that he had supplied more than five kilos of

cocaine to the Williams group in Alexandria. Valencia cooperated

with law enforcement agents by wearing a wire when receiving payment

for prior deliveries and talking with one of the leaders of the

Williams organization about future deals.

The presentence investigation report's (PSR) description of the

offense explained the role Mills played in uncovering the operations

of the Williams organization. The PSR lists Valencia and four other

individuals as suppliers to the Williams organization, and states

that, incident to Valencia's arrest, Houston law enforcement

discovered approximately four kilos of cocaine and 8.5 grams of

cocaine base in Valencia's apartment. 

At sentencing, the district court found Valencia accountable for

all the cocaine found in his apartment. The district court also

found that Valencia was an organizer of the criminal enterprise and,

pursuant to U.S.S.G. § 3B1.1(a), increased the offense level by four.

The court noted that Valencia was not "uniquely situated," but

because of his communication with the other conspirators, he promoted

the sale, use, and distribution of cocaine. After addressing all the

objections to the PSR, the district court calculated an offense level

of 33, with an associated guideline range of 168-210 months

imprisonment. The district court then granted the government's

motion for a downward departure from the guidelines (due to

Valencia's substantial assistance) and reduced his offense level to
3

26. This resulted in a new guideline range of 78-97 months

imprisonment. The district court sentenced Valencia within this new

range to 81 months imprisonment. 

Valencia challenges the increase in his offense level which

arose from the district court's finding that he was an organizer of

the criminal scheme. He also challenges the amount attributed to him

from the drugs found in his apartment. Finding no clear error in the

district court's factual findings, and no error in the district

court's application of the guidelines, we affirm.

DISCUSSION

§ 3B1.1 ORGANIZER?

In his challenge to the § 3B1.1 finding, Valencia argues that,

although he supplied large quantities of cocaine to the Williams

organization, his role in the offense did not meet the factors that

the guideline commentary directs the court to use in making its

determination of who is a leader or organizer. 

Valencia asserts in brief that the district court improperly

applied § 3B1.1. However, the determination of whether a defendant

is a § 3B1.1 leader or organizer is a factual determination. United

States v. Mejia-Orosco, 867 F.2d 216, 220 (5th Cir. 1989), cert.

denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). The

role of a defendant--whether he is a leader or organizer, or minimal

or minor participant, is among the "'sophisticated factual

determinations' a district court makes which 'depend upon an

assessment of the broad context of the crime.' Accordingly, such

findings 'enjoy the protection of the "clearly erroneous" standard.'"

United States v. Hatchett, 923 F.2d 369, 376 (5th Cir. 1991), quoting
4

United States v. Mejia-Orosco, 867 F.2d at 221. See also, United

States v. Buenrostro, 868 F.2d 135, 137 (5th Cir. 1989), cert.

denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).

We review challenges to factual findings under the guidelines

for clear error. United States v. Mackay, 33 F.3d 489, 496 (5th Cir.

1994); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994).

Thus, we will disturb a district court's factual finding regarding a

defendant's role in criminal activity only if it is clearly

erroneous. United States v. Barreto, 871 F.2d 511, 512 (5th Cir.

1989); United States v. Puig-Infante, 19 F.3d 929, 944 (5th Cir.

1994), cert. denied, 115 S.Ct. 180, 130 L.Ed.2d 114 (1994). A

factual finding is not clearly erroneous if it is plausible in light

of the record read as a whole. Puig-Infante, id. at 942; United

States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir. 1992). See also,

United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir. 1990),

cert. denied, 498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d 124 (1990)

("While any information with 'sufficient indicia of reliability to

support its probable accuracy' may be considered in making the

sentencing factfindings, . . . there must be 'an acceptable

evidential basis' for the court's factfindings at the sentencing

hearing." (citations omitted)).

The sentencing guidelines provide a four-level increase in the

offense level if the defendant was an "organizer or leader of a

criminal activity that involved five or more participants or was

otherwise extensive." U.S.S.G. § 3B1.1(a). Section 3B1.1 was

intended to be applied "only if a defendant was an organizer or

leader of at least one other person who was criminally culpable in,
 

1 During oral argument, defense counsel indicated that she

was present during Valencia's testimony at the co-conspirators'

trial. Although she did not recall details of his testimony, she

indicated that he testified about his role and that of others.

 

2 The PSR does not contain information which shows that

Valencia directed others. Its §3B1.1 recommendation, is based upon

Valencia's supplier status.

 

3 When questioned during oral argument, counsel for

Valencia maintained that the objection is to the characterization

5

though not necessarily convicted for, the endeavor." United States

v. Gross, 26 F.3d 552, 554-55 (5th Cir. 1994). 

The instant sentencing judge is the same district judge who

presided in the October 27, 1993 - November 2, 1993 trial of Aaron

Bruce Williams, Arthur Williams, and Garland Andrew Stewart, three of

Valencia's nine codefendants. Valencia testified in that trial, as

a government witness, about his role and his knowledge of the role of

his co-conspirators.1 At Valencia's January 7, 1994 sentencing, the

district judge noted his recollection of "all the testimony" and

stated that "[Valencia] had dialogue and connection with the other

people in this transaction so that he was promoting not only sale but

use and distribution." 

Valencia contends that the district court improperly applied

§3B1.1(a) because his role as supplier is not the equivalent to being

a "leader or organizer".2 He does not challenge the district court's

reliance on testimony from the trial of codefendants. "In a plea

bargain case, this court will not review challenges to the factual

basis of a guideline's applicability which has not been preserved by

objection in the district court." United States v. Mourning, 914

F.2d 699, 704 (5th Cir. 1990).3 Despite Valencia's argument of
of Valencia as an organizer on the basis of his role as a supplier,

and concluded that the supplier of such a large quantity

necessarily promotes sale, use, or distribution, thus these factors

are not indicia of a § 3B1.1 "leader" or "organizer" role.

Valencia did not object to the district court's reliance on "all

the testimony" either at the time of sentencing, in his brief to

this court, or at oral argument. Although, we do not review the

question whether the district court may rely upon the testimony

from the codefendant's trial, Mourning, we do note that, generally,

the district court may take judicial notice of its own records.

See and compare, Horowitz v. Henderson, 514 F.2d 740, 741 n.1 (5th

Cir. 1975) ("The sentencing Judge, even had he not presided over

the Williford trial, would nevertheless have been entitled to take

judicial notice of proceedings in open court."); United States v.

Estep, 760 F.2d 1060, 1063 (10th Cir. 1985) (It was within the

court's discretionary authority to judicially notice the trial

transcript of the earlier portions of the same proceeding.).

 

4 Magistrate Judge Marcia A. Crone's February 7, 1994

"Written Statement for Reasons of Detention [of codefendant Huber

Asparillo Moreno]" (R.Vol.4, p. 1205) states that "Valencia

explained that he wanted Moreno to accompany Mills and Stewart on

the fourth delivery to make sure that the money got back to Houston

so that Valencia could pay his source for the drugs." To the extent

that Valencia's trial testimony was consistent with this statement,

the district court could easily infer that Valencia played an

organizational role over and above that of supplying the cocaine.

6

"improper application", as we have noted, at issue is the district

court's factual determination about Valencia's role in the criminal

enterprise. Absent clear error in this determination, the district

court's application of § 3B1.1 is proper. 

It is plausible, in light of the record read as a whole, that

Valencia was more than just a supplier, and that Valencia had a

dialogue and connection with his co-conspirators from which the

district court could conclude that he was an organizer within the

meaning of § 3B1.1. The record supports this finding via the guilty

plea transcript's description of Mills' role and the connection

between Mills and Valencia, and by the subsequent observation

recorded in the reasons for detaining one of Valencia's codefendants.4
See Rodriguez, 897 F.2d at 1326 (the district court is permitted to

make inferences from the facts, and these inferences are

factfindings reviewed under a clearly erroneous standard).

7

Although the quantity of cocaine is a nondispositive factor in the §

3B1.1 determination, it is a factor nonetheless. When this factor is

combined with the other information upon which the district court

relied, we find no clear error in the § 3B1.1 finding, even though

the district court failed to specifically articulate the factual

basis for its determination. As we stated in Mejia-Orosco, 867 F.2d

at 221,

We will affirm sentences imposed by district judges who

make factual findings that are not clearly erroneous, and

who apply the guidelines to those findings. In such cases,

the sentencing judge need not offer further reasons

justifying the sentence. . . .

Implicit in what we have said is the conclusion that

the district court's simple statement that the defendant

is a "manager" or "leader" is a finding of fact. Building

on the lesson of Wainwright v. Witt, [469 U.S. 412,] 105

S.Ct. [844] at 855, [83 L.Ed.2d 841 (1985)], we "decline

to require the judge to write out" more specific findings

about the defendant. We recognize that so formal a

requirement would interfere with the smooth operation of

the sentencing hearing. In some instances, what is

necessarily a "judgment call" may not be susceptible of

particularization. Nonetheless, we urge district courts

to clarify their ultimate factual findings by more specific

findings when possible.

Because we find no clear error in the factual finding that Valencia

was an organizer, it follows that the district court properly applied

U.S.S.G. § 3B1.1(a) to this factual determination. Accordingly, we

affirm the four level increase.

CONSTRUCTIVE POSSESSION?

Valencia also challenges the use of all the cocaine found at his

residence in computing the amount he possessed. The district court
8

considered his objection, but found that "all of the substance in the

apartment is properly tagged to Mr. Valencia". The district court

noted that he was living in the apartment and had a female companion,

and that there was no indication that when the police arrived at the

apartment anyone tried to leave or run away.

Constructive possession is defined as "ownership, dominion, or

control over illegal drugs or dominion over the premises where drugs

are found." United States v. Carter, 953 F.2d 1449, 1456 (5th Cir.

1992), cert. denied sub nom., Hammack v. United States, 112 S.Ct.

2980, 119 L.Ed.2d 598 (1992), quoting United States v. Onick, 889

F.2d 1425, 1429 (5th Cir. 1989). Thus, one who exercises dominion

over premises where contraband is found can be deemed to possess.

United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992).

A presentence report generally bears sufficient indicia of

reliability to be considered as evidence by the district court in

resolving disputed facts. United States v. Montoya-Ortiz, 7 F.3d

1171, 1180 (5th Cir. 1993). A district court may adopt facts

contained in the PSR without further inquiry if the facts have an

adequate evidentiary basis and the defendant does not present

rebuttal evidence. United States v. Puig-Infante, 19 F.3d 929, 943

(5th Cir.), cert. denied, 115 S.Ct. 180 (1994). See also, United

States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992), cert. denied, 113

S.Ct. 348, 121 L.Ed.2d 263 (1992) (The district court may rely on

information contained in the PSR in making its factual determination

for sentencing, as long as the information has some minimum indicium

of reliability). The defendant bears the burden of showing that the
9

information in the PSR relied on by the district court is materially

untrue. Puig-Infante, 19 F.3d at 943. 

The PSR indicates that the apartment in which Valencia was

arrested, and in which the challenged amount of cocaine was found,

was Valencia's apartment. Valencia objected, asserting that the

apartment was someone else's residence and that he was visiting at

the time of his arrest. In response, the PSR states that the

Department of Public Safety records reveal that Valencia had recently

changed his address to this apartment. On appeal, Valencia contends

that, because there is a factual dispute, the district court had

insufficient information to support its finding that the drugs found

in the apartment should be assessed to him as relevant conduct. We

disagree. 

The source of the information upon which the district court

relied has sufficient indicia of reliability to support its probable

accuracy. Although Valencia correctly observes that no testimony was

presented on this issue, the record reflects no request for, or

denial of, an evidentiary hearing. Valencia has not shown that the

PSR information is untrue. We find no error in the district court's

decision to accept the information contained in the PSR. The PSR

provides a sufficient basis for a factual determination that the

apartment was Valencia's residence over which Valencia exercised

dominion. The district court's conclusion that all the cocaine found

in the apartment can be attributed to Valencia for sentencing

guidelines purposes was therefore not in error.

CONCLUSION

For the foregoing reasons, Valencia's sentence is AFFIRMED.