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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10431

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TONY KEITH LADELL, also known as Pretty Tony, also known as PT

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:07-CR-147-4

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Tony Keith Ladell appeals the sentence imposed following his guilty plea

conviction for bank robbery. We AFFIRM.

Ladell’s first sentencing issue was not raised until this appeal. Ladell

argues that the district court mistakenly applied an enhancement pursuant to

Sentencing Guidelines Section 2B3.1(b)(2)(F) for making a threat of death during

the robbery. Ladell maintains that the threat made during the robbery did not

amount to a threat of death because his co-defendant Anthony Ray Williams

United States Court of Appeals

Fifth Circuit

F I L E D

July 23, 2009

Charles R. Fulbruge III

Clerk
No. 08-10431

2

threatened only to harm people, not kill them, and because Williams gestured

as if he had an unspecified weapon, not a firearm or explosive device.

When a sentencing issue is properly preserved, a “district court’s

interpretation or application of the Sentencing Guidelines is reviewed de novo,

and its factual findings . . . are reviewed for clear error.” United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (internal quotation marks

and citation omitted). Because Ladell did not challenge the application of the

enhancement in the district court, we review for plain error only. See United

States v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008). Ladell must show an error

that is obvious and that affects his substantial rights. See Puckett v. United

States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has

the discretion to correct the error, but only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See id.

Ladell’s co-defendant Williams handed the teller a note that threatened

that people would get hurt or suffer if the teller did not comply with his

demands. Williams patted his right front pocket, which was interpreted by the

teller to mean that he had a weapon. We find no error, plain or otherwise, in the

district court’s concluding that the note and gesture would make a reasonable

person fear that her life was in danger. See U.S.S.G. § 2B3.1 cmt. n.6; United

States v. Soto-Martinez, 317 F.3d 477, 479 (5th Cir. 2003); United States v.

Smith, 973 F.2d 1374, 1375, 1377-78 (8th Cir. 1992).

Ladell next argues that the district court committed reversible error by

making an upward departure pursuant to Sections 5K2.21 and 4A1.3(a) of the

Guidelines. These provisions were used after the court made a factual finding

that Ladell participated in an uncharged robbery of a Pizza Hut. Ladell does not

challenge the legal basis for the upward departure or its extent. Instead, he

argues that there was insufficient evidence to support the district court’s

determination that he participated in the Pizza Hut robbery. Ladell maintains
No. 08-10431

3

that the only evidence that he participated in the robbery was inherently

unreliable hearsay statements.

In the presentence report (“PSR”), the probation officer reported that one

of Ladell’s co-defendants, Jami Annette Ward, stated that Williams told her that

Williams, Ladell, and Jessica Stewart robbed a Pizza Hut in May 2007. The

probation officer reported that Williams admitted to committing the Pizza Hut

robbery with Ladell. Further, Williams stated that Stewart provided the alarm

code, a list of employees, and information regarding the best time to rob the

Pizza Hut. The probation officer reported that Stewart admitted that she

worked at the Pizza Hut and that Stewart stated that Ladell told her in May

2007 that he and Williams had robbed the Pizza Hut. Stewart stated that an

employee at a convenience store near the Pizza Hut told her that one of the

robbers looked like Ladell. A law enforcement agent confirmed that the Pizza

Hut was robbed on May 5, 2007.

Although Williams attempted to minimize his culpability and Stewart

denied participating in the robbery, the statements of Ward, Williams, and

Stewart were consistent regarding Ladell’s participation in the Pizza Hut

robbery. The statements of Ward, Williams, and Stewart were also consistent

with a law enforcement officer’s determination that the Pizza Hut had been

robbed in May 2007. Ladell did not present evidence at sentencing showing that

the information in the PSR was materially inaccurate or untrue. 

We find that it was proper for the district court to rely upon the

information in the PSR to find that Ladell participated in the Pizza Hut robbery.

See United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992). Ladell has not

shown that the district court’s factual finding that he participated in the robbery

was clearly erroneous. See United States v. Ekanem, 555 F.3d 172, 175 (5th Cir.

2009); Shipley, 963 F.2d at 59.

For the first time on appeal, Ladell argues that the district court violated

Federal Rule of Criminal Procedure 32(i)(3)(B) by not resolving disputed issues
No. 08-10431

4

of fact regarding the reliability of the hearsay statements of Ward, Williams, and

Stewart. Error also is argued in the court’s reliance upon the PSR without

analyzing the reliability of the evidence supporting its finding. As Ladell did not

raise this issue in the district court, we review this issue for plain error only.

See Price, 516 F.3d at 286-87.

The district court explicitly found that Ladell participated in the Pizza Hut

robbery. As the statements of Ward, Williams, and Stewart were the only

evidence of Ladell’s participation in that robbery, this finding included the

implicit determination that those statements were sufficiently reliable to show

that Ladell participated. Ladell has not shown that the district court committed

error, plain or otherwise, by failing to make sufficient findings regarding

disputed issues of fact. See United States v. Carreon, 11 F.3d 1225, 1231 & n.14

(5th Cir. 1994); United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992).

AFFIRMED.