### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 40150 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. BENITO ALANIZ, SR. , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:15

- CR

- 317

- 1

Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Benito Alaniz, Sr. , appeals his 120

- month prison sentence following his guilty

- plea conviction for conspiring to possess with the intent to distribute more than 100 kilograms of marijuana. Alaniz con tends that the district court clearly erred i n determining that he was an organizer, leader, manager, or supervisor of one or more other participants in the criminal activity and thus

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances se t forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 20, 2016 Lyle W. Cayce Clerk Case: 16-40150 Document: 00513685168 Page: 1 Date Filed: 09/20/2016No. 16

- 40150

2 subject to a two

- level aggravating role enhancement under U.S.S.G. § 3B1.1(c). See § 3B1.1, comm ent. (n.2).

“ Whether a defendant exercised an aggravating role as an organizer, leader, manager, or supervisor for purposes of an adjustment under [§ 3B1.1(c)] is a finding of fact r eviewed for clear error.” United States v. Ochoa

- Gomez , 777 F.3d 278, 281 (5th Cir. 2015). In making factual findings for sentencing purposes, the district court may consider any evidence bearing sufficient indicia of reliability to support its probable accuracy, such as a presentence report (PSR )

. United States v. Nava , 624 F.3d 226, 231 (5th Cir. 2010). If the defendant takes issue with the PSR a s evidence, he has “ the burden of showing that the information in the [PSR] is materially untrue.” Id. Here, the district court adopted the PSR’ s factual finding that Alaniz was an organizer, leader, manager, or supervisor of the criminal activity. Alaniz challenged the PSR ’s dete rmination by contending that other conspirator s served as the leader s and organizer s with respect to a specific marijua na smuggling offense alleged in a dismissed count of the indictment. Because more than one person may occupy a leadership or managerial role within a criminal association, Alaniz’s assertion does not bar him from qualifying as a leader or organizer with r es pect to the criminal conspiracy. See § 3B1.1(c), comment. (n.4). Moreover, Alaniz admitted at sentencing that he recruited Sergio Gonzalez

- Ruiz to participate in the conspiracy, and he did not refute the PSR’s remaining findings that he recruited his son and Marcelino Mireles , Jr., generally exercised managerial authority over all three co

- conspirators, exercised decision

- making authority within the conspiracy, organized the smuggling events, and claimed a larger share of the smuggling payments.
In any event , Alaniz’ s unsworn assertion s at the sentencing hearing are insufficiently reliable to be considered rebuttal evidence

. S ee United States v. Case: 16-40150 Document: 00513685168 Page: 2 Date Filed: 09/20/2016No. 16

- 40150

3 Lghodaro , 967 F. 2d 1028, 1030 (5th Cir. 1992). Alaniz has thus failed to carry his burden of establishi ng that the PSR’ s information i s materially untrue

. S ee Nava , 624 F.3d at 231 . Accordingly, t he district court did not clearly err in adopting the PSR’s unrebu tted factual finding that he was an organizer, leader, manager, or supervisor of the criminal a ctivity for purposes of § 3B1.1(c)’s two

- level aggravating role enhancement. See United States v. Vital , 68 F.3d 114, 120 (5th Cir. 1995) (holding that a district court’s reliance on the facts set forth in a PSR will not constitute clear error if the defe ndant did not submit rebuttal evide nce supporting his objection). The judgment of the district court is AFFIRMED. Case: 16-40150 Document: 00513685168 Page: 3 Date Filed: 09/20/2016