1Giraldo’s judgment of conviction identifies him by his alias,

Jouquin Rodriguez; however, the district court subsequently ordered

him to use the name Giraldo and to make any future filings in that

name.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________________

No. 96-20390

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ALBERTO GIRALDO,

Defendant-Appellant.

_________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________

April 11, 1997

Before JOLLY, JONES, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Carlos Alberto Giraldo1 appeals his

sentence, challenging the district court’s upward adjustment to his

offense level for his role as an “organizer,” pursuant to United

States Sentencing Guideline (U.S.S.G.) §3B1.1. Concluding that the

district court reached the right result but for the wrong reasons,

we affirm.

I.

FACTS AND PROCEEDINGS

Giraldo’s conviction stems from his participation in a drug

transaction staged by the Drug Enforcement Administration (DEA) in
2

connection with its investigation of the Alejandro Bustamante

organization, a Colombian drug trafficking group attempting to

deliver cocaine into the United States. The investigation began

when an undercover cooperating individual (the CI) arranged for DEA

agent William Snyder to meet organization insiders, co-defendants

Edjar de Jesus Alvarez and Diego Fernando Mejia. Posing as the

“contact man” who would transport and store the deliveries of

cocaine, Snyder discussed doing a cocaine deal with Alvarez and

Mejia. After some hesitation, Alvarez and Mejia agreed to pay

Snyder up front for his services.

When a prior commitment prevented Snyder from completing the

investigation, another DEA agent, Miguel Villafranca, continued the

negotiations with Alvarez and Mejia. Villafranca and the CI met

Mejia and Alvarez in a parking lot where Mejia and Alvarez

inspected approximately one hundred kilograms of cocaine that

Villafranca had brought in the trunk of his car. Giraldo was not

present. 

Several days later, Villafranca and the CI met Mejia, Alvarez,

and —— this time —— Giraldo in another parking lot for a second

inspection. While Giraldo made a phone call to persons whom agents

suspected were money suppliers, Alvarez explained that Giraldo

would pick up the cocaine after Alvarez paid the money. Mejia and

the CI then got into the back seat of Villafranca’s car, and Mejia

inspected more cocaine samples. Another meeting was arranged for

later that afternoon at a Captain Benny’s restaurant, and the

defendants agreed to bring a vehicle containing $200,000 in
3

exchange for approximately fifty-seven kilograms of cocaine. The

defendants drove away followed by surveillance agents who saw

Giraldo get out of the car at several locations to make more

telephone calls.

At Captain Benny’s, Villafranca was finally introduced to

Giraldo. Alvarez gave Villafranca the keys to a Nissan Maxima with

the money in the trunk. Alvarez wanted Giraldo or Mejia to go with

Villafranca to pick up the cocaine but agreed instead to let the CI

remain behind to ensure Villafranca’s return. 

Villafranca drove to the DEA offices and counted the money,

which came up short. He loaded fifty kilograms of cocaine into the

car and returned to Captain Benny’s. As he approached the

restaurant, the CI motioned for him to go to the Sheraton Grand

Hotel across the street. In the hotel lobby, Villafranca asked

Alvarez about the shortage in the money. Alvarez responded by

contacting Giraldo and Mejia at Captain Benny’s and telling them to

bring the rest of the money. As Giraldo and Mejia attempted to

leave Captain Benny’s, they were arrested. Other DEA agents

arrested Alvarez at the hotel.

A jury convicted Giraldo of one count of conspiracy to possess

with intent to distribute more than five kilograms of cocaine,

pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and one

count of aiding and abetting in an attempt to possess with intent

to distribute more than five kilograms of cocaine, pursuant to 21

U.S.C. §§ 841(a)(1), (b)(1)(A), and 2. 

According to the Presentencing Report (PSR) prepared by the
4

probation department, Giraldo admitted to the probation officer

that he had obtained the money that was used to complete the drug

transaction. Specifically, the PSR stated that (1) Giraldo had

contacted an individual known to be involved in illegal activities,

(2) that individual did not want to become personally involved in

the transaction, so he gave Giraldo a beeper number for another

individual, and (3) the second individual delivered the money to

Giraldo, who then provided it for the drug transaction. The PSR

recommended a two level increase in Giraldo’s offense level for his

role as an “organizer [who] significantly influenced the outcome of

the criminal activities,” based on his admission that he obtained

the $180,000 that completed the drug transaction. 

At the sentencing hearing, the district court adopted the PSR

in full, stating that “[y]our position in this transaction clearly

makes you an organizer, and your connection to the money source

makes that obvious.” The district court imposed a two level

increase in Giraldo’s offense level for his role as an organizer,

pursuant to U.S.S.G. §3B1.1(c), and sentenced him to concurrent

292-month terms of imprisonment and concurrent five-year terms of

supervised release. Giraldo timely appealed his sentence.

II.

ANALYSIS

A. STANDARD OF REVIEW

The district court’s determination that a defendant is a

U.S.S.G. §3B1.1 organizer is a factual finding which this court
 

2United States v. Ronning, 47 F.3d 710, 711 (5th Cir.

1995)(citing United States v. Valencia, 44 F.3d 269, 272 (5th Cir.

1995)).

 

3Ronning, 47 F.3d at 711; Valencia, 44 F.3d at 272.

 

4United States v. Gross, 26 F.3d 552, 554 (5th Cir. 1994).

 

5U.S.S.G. Chapter 3, Part B, Introductory Commentary (1995).

 

6U.S.S.G. §3B1.1(c) (1995).

 

7U.S.S.G. §3B1.1, Application Note 2 (1995)(emphasis added).

See also U.S.S.G. Amendment 500 (1993). 

5

reviews for clear error.2 A factual finding is not clearly

erroneous if it is plausible in light of the record read as a

whole.3 This court reviews a sentencing court’s application of the

guidelines de novo.4

B. APPLICABLE LAW

An adjustment to the offense level may be made based on the

role the defendant played in committing the offense.5 A two level

increase is warranted “[i]f the defendant was an organizer, leader,

manager, or supervisor in any criminal activity” that involved

fewer than five participants.6 An application note added to this

section in 1993 provides:

To qualify for an adjustment under this section, the

defendant must have been the organizer, leader, manager,

or supervisor of one of more other participants. An

upward departure may be warranted, however, in the case

of a defendant who did not organize, lead, manage, or

supervise another participant, but who nevertheless

exercised management responsibility over the property,

assets, or activities of a criminal organization.7

Although Giraldo was sentenced before the effective date of the

amendment, this court may consider the amendment because it was
 

8Gross, 26 F.3d at 555.

 

9The PSR generally bears sufficient indicia of reliability,

and the district court may rely on it when making the factual

determinations required by the guidelines. United States v. Vital,

68 F.3d 114, 120 (5th Cir. 1995). The district court may adopt

facts in the PSR without further inquiry if they have an adequate

evidentiary basis and the defendant does not present rebuttal

evidence. United States v. Valencia, 44 F.3d 269, 274 (5th Cir.

1995). 

6

intended to clarify the application of a guideline.8

C. DID THE DISTRICT COURT ERR IN IMPOSING THE TWO LEVEL ADJUSTMENT?

As Giraldo offered no rebuttal evidence to contest the facts

contained in the PSR, the district court properly accepted them as

true and so must we.9 The PSR recited that:

[Giraldo] was functioning on the periphery of this drug

conspiracy. However, in [his] statement to the probation

officer relative to his role, he admittedly obtained the

$180,000 that completed the drug transaction. Without

the recruitment of accomplices by [Giraldo] relative to

the $180,000, the drug purchase could not have been

completed. Thus, based on the statement of [Giraldo], a

two level increase is applied for his aggravating role in

the offense, as the defendant is considered an organizer,

whose role significantly influence the outcome of the

criminal activities.

Adopting the PSR in full, the district court found that Giraldo was

an organizer, based on his admission that he obtained the money to

complete the drug transaction, and applied an upward adjustment to

his sentence.

The government argues that the district court properly

adjusted Giraldo’s offense level, insisting that even if Giraldo

did not organize other criminal participants, he may still be

considered an organizer for purposes of an adjustment if he

exercised management responsibility over a criminal organization’s
 

10101 F.3d 1046 (5th Cir. 1996).

 

11Id. at 1068 (when the district court does not order an upward

departure, the asset management exception is unavailable to sustain

the sentence enhancement on appeal). See also United States v.

Greenfield, 44 F.3d 1141, 1146 (2d Cir. 1995)(“Thus, by negative

implication, the Application Note seems clearly to preclude

management responsibility over property, assets, or activities as

the basis for an enhancement under §3B1.1(c).”)(emphasis in

original).

 

12See Williams v. United States, 503 U.S. 193, 203, 112 S. Ct.

1112 (1992)(“[O]nce the court of appeals has decided that the

district court misapplied the Guidelines, a remand is appropriate

unless the reviewing court concludes, on the record as a whole,

that the error was harmless, i.e., that the error did not affect

the district court’s selection of the sentence imposed.”). See

7

property, assets, or activities (“asset management exception”). We

disagree. 

In United States v. Jobe10 we made clear that the asset

management exception applies only when the district court makes an

upward departure from the sentencing range and not when it makes an

upward adjustment to the offense level.11 Indeed, the express

language of the subject application note draws this distinction.

Insofar as the district court relied on the asset management

exception to make an upward adjustment to Giraldo’s offense level,

it misapplied the guidelines. That exception clearly applies to an

upward departure only. The PSR expressly concludes that there were

“no aggravating or mitigating circumstances that would merit

consideration for a departure in this case.” 

Nevertheless, we decline to vacate the district court’s

sentence, as we can say with assurance that the district court

would have imposed an identical sentence even without relying on

the asset management exception.12 The district court’s finding that
also United States v. Bryant, 991 F.2d 171, 178 n.9 (5th Cir.

1993); United States v. Elwood, 999 F.2d 814, 818 n.18 (5th Cir.

1993); and United States v. Salazar, 961 F.2d 62, 64 (5th Cir.

1992). In addition, when the judgment of the district court is

correct, this court may affirm for reasons not given by the

district court and not advanced to it. Laird v. Shell Oil Co., 770

F.2d 508, 511 (5th Cir. 1985).

 

13U.S.S.G. §3B1.1, Application Note 4 (1995). 

8

Giraldo was a §3B1.1(c) organizer was not clearly erroneous. He

was an organizer, not of assets, but of other criminal

participants. The PSR contained Giraldo’s admission that he

recruited the money suppliers for the drug transaction.

Furthermore, the application notes specifically instruct us to

consider the recruitment of accomplices in determining whether the

defendant was an organizer.13 As such, Giraldo cannot be heard to

complain that he was not an organizer, and we hold that the

district court’s two level upward adjustment in Giraldo’s offense

level was lawful. 

III.

CONCLUSION

For the foregoing reasons, Giraldo’s sentence is

AFFIRMED.