* 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

September 26, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11332

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH WAYNE WALKER, JR, 

also known as Li’l Crazy,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

4:06-CR-79-3

Before GARWOOD, GARZA and OWEN, Circuit Judges.

PER CURIAM:*

Kenneth Wayne Walker appeals his sentence following his guilty plea

conviction for distribution of 1.51 grams of crack cocaine. The district court in

November 2006 sentenced Walker to 240 months in prison largely based on the

presentence report(PSR) calculation of the advisory guideline sentencing range

of 292-365 months, capped at the statutory maximum of 240 months.
No. 06-11332

2

Walker argues that the district court erred by adopting the PSR’s drug

quantity finding because the only basis for the amount of crack cocaine

attributed to him was hearsay information provided by codefendants. Walker

contends that the hearsay information did not bear a sufficient indicia of

reliability because it was uncorroborated and contradictory. Walker also asserts

that his codefendants had a motive to lie in their statements to the Government

and that, therefore, the information they provided is unreliable.

After United States v. Booker, 543 U.S. 220 (2005), this court continues to

review the district court’s interpretation and application of the Guidelines de

novo and its factual findings for clear error. United States v. Villanueva, 408

F.3d 193, 202, 203 & n.9 (5th Cir. 2005). A district court’s calculation of the

quantity of drugs involved in an offense is a factual finding that is entitled to

considerable deference and will be reversed only if clearly erroneous. See United

States v. Betancourt, 442 F.3d 240, 246 (5th Cir. 2005). A factual finding is not

clearly erroneous if it is plausible in light of the record as a whole. Id. 

In making factual findings, the district judge may consider any

information that has “sufficient indicia of reliability to support its probable

accuracy.” U.S.S.G. § 6A1.3(a), p.s.: Betancourt, 442 F.3d at 247. “[A] district

court may adopt the facts contained in a PSR without further inquiry if those

facts have an adequate evidentiary basis with sufficientindicia of reliability and

the defendant does not present rebuttal evidence or otherwise demonstrate that

the information in the PSR is unreliable.” United States v. Cabrera, 288 F.3d

163, 173-74 (5th Cir. 2002).

While Walker’s PSR is based primarily on the hearsay of codefendants, a

district court may consider hearsay evidence to make factual findings at

sentencing. See United States v. Valdez, 453 F.3d 252, 266-67 (5th Cir.), cert.

denied, 127 S.Ct. 456 (2006). Furthermore, the court may rely on information

provided by codefendants provided the information bears the minimum indicia
No. 06-11332

3

of reliability. See United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992). In

the instant case,the codefendants’ statements corroborated one another and the

information the codefendants provided was consistent with the drug trafficking

activities observed, and testified to, by law enforcement. Furthermore, any

inconsistencies in the codefendants’ statements about the extent and duration

of Walker’s drug trafficking do not undermine the reliability of the PSR’s

quantity determination. United States v. Davis, 76 F.3d 82, 85 (5th Cir. 1996)

(finding that the district court “was free to evaluate” the conflicting testimony

of a witness regarding the number oftimes he bought drugs from the defendant).

The district court concluded that Walker’s codefendants provided credible and

reliable information and we defer to the district court’s credibility

determinations. See United States v. Ocana, 204 F.3d 585, 593 (5th Cir. 2000).

Furthermore, although Walker contends that the information contained

in thePSR is unreliable, he failed (except as noted below)to present any rebuttal

evidence to contradict the PSR’s drug-quantity determinations. Therefore,

Walker has not demonstrated that the PSR’s attribution to him of approximately

one kilogram of crack cocaine was incorrect or based on materially untrue

information. United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995) (“The

defendant bears the burden of showing that the information in the PSR relied

on by the district court is materially untrue.”). Consequently, he cannot show

that the court’s adoption of the PSR’s drug quantity information was clearly

erroneous.

It was stipulated in open court at the sentencing hearing that beginning

sometime in June 2005 (following the June 13, 2005 sale alleged in the

indictment) Walker was “in jail” for a period of “up to 45 days.” Walker argues

that this renders unreliable the PSR’s calculation for relevant conduct purposes

of 1.08 kilograms of crack cocaine having been sold by Walker during the some

36 weeks from March to November 2005, based on an assumed 30 grams per
No. 06-11332

1 Based on a criminal history category III, a 2 level obstruction of justice adjustment

and denial of an acceptance of responsibility adjustment, none of which Walker has challenged

on appeal. 

4

week. No reversible error is shown. The district court was plainly aware of the

stipulation and had before it sufficient evidence to conclude that Walker was

selling at a rate at least as high as approximately 40 grams a week. In any

event, even if it is assumed that Walker sold only at a rate of 30 grams a week

for only 29 weeks (and that he was in jail a full 45 days), for a total of 870 grams,

it clearly would have made no difference in his sentence or the appropriate

advisory guideline range. The PSR calculated Walker’s base offense level under

U.S.S.G. § 2D1.1(c)(2), which provides for a base offense level of 36 for at least

500 grams but less than 1.5 kilograms of cocaine base. The same base offense

level would be applicable whether the quantity was 870 grams (or 500 grams)

or 1.08 kilograms, and the same advisory guideline range would have applied.

The PSR ultimately calculated an advisory guideline range of 292 to 365

months,1 but the statutory maximum sentence of 240 months (21 U.S.C. §

841(b)(1)(c)) being lower, 240 months became the advisory guideline sentence.

U.S.S.G. § 5G1.1(a). 

AFFIRMED.