IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-20245

Summary Calendar

 

UNITED STATES OF AMERICA,

Appellee,

versus

RITA SUHAYLA CASTRO, also known as 

Suhayla Castro, also known as Rita Lugo,

Defendant-Appellant.

CONSOLIDATED WITH

No. 96-20246

UNITED STATES OF AMERICA,

Appellee,

versus

RODRIGO CLEVES, also known as El

Condor, also known as El Pajaro,

Defendant-Appellant.

 

Appeal from the United States District Court

For the Southern District of Texas

USDC No. CR H-94-60-6

USDC No. CR H-94-60-1

 

February 6, 1997
*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this opinion should not be published and is not precedent except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.

2

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rita Suhayla Castro appeals her guilty-plea convictions for

one count of conspiracy to possess with intent to distribute

cocaine and three counts of possession with intent to distribute

cocaine. Rodrigo Cleves appeals his guilty-plea convictions for

conspiracy to possess with intent to distribute cocaine and

possession with intent to distribute cocaine. Appellants raised

virtually the same issues on appeal; therefore, the cases have been

consolidated on the government’s unopposed motion. FED. R. APP. P.

3(b).

Castro and Cleves argue that the district court violated their

substantial rights by not complying with Fed. R. Crim. P. 11(d),

which requires the court to inquire whether the plea results from

prior discussions with the United States attorney. Neither Cleves

nor Castro identifies any substantial right that was violated by

any variance in the district court’s procedure. See U.S. v.

Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc). Any error was

harmless and not reversible. Id.; U.S. v. Thomas, 13 F.3d 151 (5th

Cir. 1994).

Castro and Cleves argue that there are unresolved factual

questions behind their respective roles in the offenses. There is
3

substantial evidence in the PSRs to support the district court’s

determination that Castro was a manager and Cleves was a leader in

the drug organization. A PSR bears sufficient indicia of

reliability to be considered as evidence in making factual

determinations under the Sentencing Guidelines. U.S. v. MontoyaOrtiz, 7 F.3d 1171, 1180 (5th Cir. 1993). The district court’s

findings were not clearly erroneous. See U.S. v. Avlarado, 898

F.2d 987, 993 (5th Cir. 1990).

Cleves and Castro argue that the Government breached the plea

agreement by failing to file a motion to impose a sentence below

the mandatory minimum. Neither party objected in the district

court. Furthermore, at the time of sentencing, a unitary motion

under § 5K1.1 was sufficient to implement a departure from the

guidelines and the statutory minimum sentence. See U.S. v.

Underwood, 61 F.3d 306, 311-12 (5th Cir. 1995). The extent of any

departure was within the discretion of the district court. Id. We

find no substantial rights violated by the Government’s unitary

motion. U.S. v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc), cert. denied, 115 S.Ct. 1266 (1995).

The government’s motion to consolidate these appeals is

GRANTED. The judgment of the district court in both cases is

AFFIRMED.