Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40129

(Summary Calendar)

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VERONICA BENAVIDES SANTOS,

Defendant-Appellant.

____________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(1:94-82-3)

_____________________________________________________

(October 10, 1995)

 

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:1

Veronica Benavides Santos pleaded guilty to misprision of a

felony, and the district court sentenced her to 21 months of

imprisonment, followed by a one-year term of supervised release.

She brings three points of error regarding her sentence. We

affirm.

DUE PROCESS
 The Government cites as supoorting authority for its

proposition United States v. Binker, 795 F.2d 1218, 1227 (5th Cir.

1986), cert. denied, 479 U.S. 1085 (1987). While Binker lends

support to the Government’s position, it is not directly

controlling, as it applies the plain error stnadard to an argument

raised for the first time in a motion for reconsideration of the

denial of a motion for new trial. Id. In this case, Santos raised

her issue in a motion to reconsider her sentencing. 

2

Santos argues that the district court denied her due process

at sentencing by considering unreliable information contained in

the presentence report (“PSR”) when calculating the drug quantity

held attributable to her. Santos contends that the information in

the PSR was unreliable because it was hearsay from her

collaborators whose credibility and reliability had not been

established by cross-examination during a full evidentiary hearing.

Although Santos objected to the drug quantity held

attributable to her and to the truth and reliability of the

information in the PSR, Santos failed to argue that the use of the

information at sentencing violated her due process rights until

after sentencing in her motion to reconsider. The Government

argues that, as the due process argument was never presented to the

district court at sentencing, it must be reviewed for plain error.2

This Court need not decide whether the plain error standard

should apply in this case, because no error occurred. The

admission of hearsay at sentencing does not violate due process or

the right to confrontation. United States v. Young, 981 F.2d 180,

187 (5th Cir. 1992), cert. denied, 113 S. Ct. 2454 (1993), and

cert. denied, 113 S. Ct. 2983 (1993). Due process requires only

that the information relied upon at sentencing have "some minimal
3

indicium of reliability" and "bear some rational relationship to

the decision to impose a particular sentence." Id. (internal

quotations and citation omitted). Santos bears the burden of

demonstrating that the information relied upon in sentencing is

"materially untrue." United States v. Vela, 927 F.2d 197, 201 (5th

Cir.), cert. denied, 502 U.S. 875 (1991). Santos provided only her

unsworn assertions in objection to the PSR and, therefore, did not

meet her burden. Accordingly, the district court did not commit

any error in relying upon the hearsay in the PSR.

DRUG QUANTITY CALCULATION

Santos argues that the district court clearly erred in

calculating the drug quantity attributed to her. Santos again

focuses on whether the district court relied upon unsupported

hearsay allegations in the PSR that were derived from Santos'

collaborators. 

"Specific factual findings about the quantity of drugs to be

used in setting the base offense level are reviewed on appeal only

for clear error." United States v. Angulo, 927 F.2d 202, 205 (5th

Cir. 1991). A finding will not satisfy this standard unless the

reviewing court, on the entire evidence, is left with the definite

and firm conviction that a mistake has been committed. United

States v. Mitchell, 964 F.2d 454, 457-58 (5th Cir. 1992). The

Government bears the burden of establishing sentencing facts by a

732, 734 preponderance of the evidence. United States v. Wright,

24 F.3d (5th Cir. 1994).

The district court may consider any evidence that has
4

"sufficient indicia of reliability," including hearsay. U.S.S.G.

§ 6A1.3(a), comment.; United States v. Manthei, 913 F.2d 1130, 1138

(5th Cir. 1990). The PSR itself also bears such indicia. United

States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990). A defendant

who objects to consideration of information by the sentencing court

bears the burden of proving that it is "materially untrue,

inaccurate or unreliable." Angulo, 927 F.2d at 205.

Santos objected to the calculation in the PSR which attributed

219.54 kilograms of marihuana to her, stating that the information

in the PSR was untrue and misleading, and asserted that she was

responsible only for 200 pounds of marihuana. However, based on

information provided from the statements of Santos' collaborators,

the PSR calculated that Santos actively participated in trafficking

several hundred pounds of marihuana. The district court determined

that the information in the PSR had sufficient indicia of

reliability to support its probable accuracy and found that Santos

was responsible for arranging the distribution of between 219.55

kilograms and 294.39 kilograms of marihuana. Santos did not

present any evidence or argument contradicting the information in

the PSR. Therefore, as Santos did not meet her burden in

demonstrating the unreliability of the information in the PSR, the

district court did not clearly err in calculating at least 219.55

kilograms of marihuana as attributable to Santos. See Angulo, 927

F.2d at 205. 

Santos also contends that the Government never showed that her

collaborators were not drug addicts and that this court should
5

apply a heightened standard of scrutiny when considering a drug

quantity estimate provided by an informant who has a history of

drug addiction, as do other circuits. As Santos did not raise

her issue in the district court, it is analyzed for plain error.

See United States v. Singleton, 49 F.3d 129, 132 (5th Cir. 1995)

(applying plain-error analysis to sentencing issues). Therefore,

this court could not apply Santos' requested heightened standard of

scrutiny, even if it was applicable to the situation.

 Parties are required to challenge errors in the district

court. When a defendant in a criminal case has forfeited an error

by failing to object, this court may remedy the error only in the

most exceptional case. United States v. Calverley, 37 F.3d 160,

162 (5th Cir. 1994). The Supreme Court has directed the courts of

appeals to determine whether a case is exceptional by using a twopart analysis. Olano, 113 S. Ct. at 1777-79. 

 First, an appellant who raises an issue for the first time on

appeal has the burden to show that there is actually an error, that

it is plain, and that it affects substantial rights. Olano, 113 S.

Ct. at 1777-78; United States v. Rodriguez, 15 F.3d 408, 414-15

(5th Cir. 1994); Fed. R. Crim. P. 52(b). Plain error is one that

is "clear or obvious, and, at a minimum, contemplates an error

which was clear under current law at the time of trial."

Calverley, 37 F.3d at 162-63 (internal quotation and citation

omitted). "[I]n most cases, the affecting of substantial rights

requires that the error be prejudicial; it must affect the outcome

of the proceeding." Id. at 164. This court lacks the authority to
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relieve an appellant of this burden. Olano, 113 S. Ct. at 1781.

 Second, the Supreme Court has directed that, even when the

appellant carries his burden, "Rule 52(b) is permissive, not

mandatory. If the forfeited error is `plain' and `affect[s]

substantial rights,' the Court of Appeals has authority to order

correction, but is not required to do so." Olano, 113 S. Ct. at

1778 (quoting Fed. R. Crim. P. 52(b)).

Credibility determinations in a sentencing hearing "are

peculiarly within the province of the trier-of-fact." United

States v. Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). Santos does

not provide any information concerning drug use by her

collaborators or any other information which would suggest that the

district court's credibility determinations were inaccurate.

Additionally, Santos' supporting authority considered witnesses who

were drug addicts, but did not require the Government to disprove

that people were addicts. See United States v. Beler, 20 F.3d

1428, 1435 (7th Cir. 1994); United States v. Miele, 989 F.2d 659,

666-67 (3rd Cir. 1993); United States v. Simmons, 964 F.2d 763, 776

(8th Cir.), cert. denied, 113 S. Ct. 632 (1992); United States v.

Robison, 904 F.2d 365, 371-72, cert. denied, 498 U. S. 946 (1990).

Santos does not demonstrate plain error in the district court's

credibility choices.

Finally, Santos argues that this court should reconsider its

previous holdings that the PSR generally bears sufficient indicia

of reliability to be considered as evidence by the sentencing court

in making factual determinations. One panel of this court may not
7

overrule previous panel decisions absent en banc reconsideration or

a superseding contrary decision of the Supreme Court. In re Dyke,

943 F.2d 1435, 1441-42 (5th Cir. 1991). We reject Santos'

challenge to this Court's position on the general reliability of

the PSR.

DOWNWARD DEPARTURE

Santos argues that the district court erred in refusing to

grant her a downward departure based on extraordinary family

circumstances. Santos contends that the district court's

statements demonstrate that the district court erroneously believed

that it lacked authority to depart from the sentencing guidelines.

The Government argues that the statements demonstrated that the

district court did not believe a departure for family circumstances

was appropriate in this case, and that in any event, Santos' family

circumstances were not so extraordinary that they justified a

downward departure. 

Departures from the guidelines are within the broad discretion

of the district court. United States v. Adams, 996 F.2d 75, 58 (5th

Cir. 1993). This court will not review a district court's refusal

to depart from the Guidelines unless the refusal was in violation

of the law. Id.

Santos requested a downward departure based on her

extraordinary family circumstances. She explained in her request

that she was the sole support for her fourteen-year-old son who was

mentally retarded and legally blind. Santos told the court that

her son was not toilet trained and that he tended to make himself
8

ill if she was away. At sentencing, the district court refused

to apply a downward departure for extraordinary family

circumstances, stating that:

[t]he Defendant should be aware of these hardships at the

time she became involved in the drug offenses and she

should have avoided this situation if she was really

conscientiously concerned with the welfare of her family.

The Court does not feel that there is any justification

for making a further departure.

Later, the court stated again that:

. . . as we have already stated, the Government has shown

the Defendant consideration and some favor in regard to

the count that was brought against the Defendant, to

which she has pled guilty. We do not feel that the

Defendant is entitled to any further consideration in

regard to a downward departure. And as we have stated,

we reiterate again, that the Defendant was knowledgeable

of her condition in regard to family members and this

should have been an impediment and should have prevented

her from becoming involved in the violation of the law,

knowing that she would be apprehended, could be

apprehended, and could go to the penitentiary. So the

Court is showing the defendant all of the consideration

that we can under the circumstances.

Unless there are unique or extraordinary circumstances, a

downward departure from the guideline range based on the

defendant's parental responsibilities is improper. United States

v. Brown, 29 F.3d 953, 961 (5th Cir.), cert. denied, 115 S. Ct. 587

(1994); see U.S.S.G. § 5H1.6 (family ties and responsibilities are

not ordinarily relevant in determining whether a sentence should be

outside the applicable guideline range).

The district court clearly considered Santos’ request for

downward departure, and declined to grant it. The sentence imposed

was legal. We cannot say that the facts here are so extraordinary

as to compel departure, as a matter of law. Finding no abuse of
9

discretion and a sentence within the legally available guideline

range, we must affirm.

CONCLUSION

For the foregoing reasons, we AFFIRM the sentence imposed by

the district court.

AFFIRMED.