UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40731

UNITED STATES of AMERICA,

Plaintiff-Appellee,

versus

GILBERT AYALA

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(February 27, 1995)

Before KING, GARWOOD, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

At the sentencing hearing, Appellant Gilbert Ayala di d not

specifically challenge any fact within his presentence

investigation r eport (PSR) or offer any evidence. Ayala merely

argued that there was no factual support for a four-level

adjustment in his offense level for being a leader or organizer,

and that he should receive a reduction for acceptance of

responsibility. Finding some support in the PSR (which had been

adopted by the sentencing court) for the leadership adjustment, and

concluding that Ayala has not shown that this is an "extraordinary

case" where adjustments for both obstruction of justice and

acceptance of responsibility should coexist, we affirm.-2- I. FACTS AND PROCEDURAL HISTORY

In 1992, Ayala was indicted with four codefendants and charged

with conspiracy to possess with intent to distribute 100 kilograms

or more of marijuana, and the substantive offense of possession

with intent to distribute the marijuana. Ayala failed to appear

for a pretrial hearing in Texas, and he remained a fugitive until

his arrest in 1993 in Memphis, Tennessee, for a state charge of

possession of marijuana. After he was returned to Texas, Ayala

pleaded guilty to the 1992 federal marijuana charge.

The PSR recommended a two-level increase for obstruction of

justice due to Ayala's abscondence from pretrial supervision. The

PSR al so recommended a four-level increase pursuant to U.S.S.G.

§3B1.1(a) because Ayala was an organizer/lead er of criminal

activity involving five or more participants. Additionally, the

PSR concluded that because of his abscondence, Ayala had not

demonstrated acceptance of responsibility.

In his written objections to the PSR, Ayala had challenged the

denial of a reduction for acceptance of responsibility. In the

context of arguing that he was entitled to a three-level reduction

for acceptance of responsibility, Ayala contended that "[i]f [he]

had not truthfully revealed to the government his involvement in

this case, the go vernment would not have been able to assess him

the points for his leadership role." At the sentencing hearing,

however, Ayala also challenged his four-level increase for being a

leader or org anizer, asserting that there was no evidence to-3-

support such a finding. Ayala did not specifically challenge any

factual statement in the PSR. Ayala failed to produce any

testimony or other evidence in support of his objections except the

written plea agreement.

The government, having been first made aware of the leadership

objection at the sentencing hearing, also failed to produce any

evidence. The government asserted that ample testimony from

codefendant G alindo at another trial, as well as the various

reports submitted to the probation office, supported the PSR's

conclusion regarding leadership/organizer increase. The sentencing

court overruled Ayala's objections and adopted the PSR.

II. ORGANIZER/LEADER INCREASE

Ayala contends that the district court erred in enhancing his

base offense level by four levels for being a leader/organizer. He

asserts that there was insufficient evidence to support such a

finding. He does not contest that five or more participants were

involved in the instant crime. Further, he offers no evidence in

support of his position save for naked assertions that he was not

an organizer or leader, asserting that "at best, [] the government

has shown that he was a manager or supervisor" only.

This Court will disturb a district court's factual finding

that a defendant was a leader/organizer pursuant to §3B1.1 only if

it is clearly erroneous. United States v. Barreto , 871 F.2d 511,

512 (5th Cir. 1989). Factual findings are not clearly erroneous if

they are plausible in light of the record read as a whole. U nited-4-

States v. Whitlow , 979 F.2d 1008, 1011 (5th Cir. 1992). However,

t here must be an acceptable evidentiary basis for the court's

factfindings at the sentencing hearing. U nited States v.

Rodriguez

, 897 F.2d 1324, 1327-28 (5th Cir.), cert. denied , 498

U.S. 857, 111 S.Ct. 158 (1990). As the party seeking an adjustment

in the sentence level, the government had the burden of proving by

a preponderance of the evidence the facts necessary to support the

adjustment. S ee United States v. Elwood

, 999 F.2d 81 4, 817 (5th

Cir. 1993); United States v. Patterson

, 962 F.2d 409, 415 (5th Cir.

1992).

Generally, a PSR bears sufficient indici a of reliability to

permit the sentencing cou rt to rely on it at sentencing. S ee

United States v. Gracia , 983 F.2d 625, 629 (5th Cir. 1993). The

defendant bears the burden of demonstrating that the PSR is

inaccurate; in th e absence of rebuttal evidence, the sentencing

court may properly rely on the PSR and adopt it. I d

. at 630. The

court is free to disregard a defendant's unsworn assertio ns that

the PSR is unreliable. Id . at 630 & nn. 21, 22; United States v.

Lghodaro

, 967 F.2d 1028, 1030 (5th Cir. 1992) (objections in the

form of unswo rn assertions do not bear sufficient indicia of

reliability to be considered).

A close examination of Ayala's PSR shows that there were

sufficient factual findings to support the leadership adjustment.

The PSR provided that a confidential informant had advised the

Federal B ureau of Investigation that a large marijuana shipment

would be sent from the Brownsville-Harlingen area of Texas to an-5-

area in north Texas within a hidden compartment in a dark gray

Peterbilt tractor-trailer with "AC Truck ing" on both doors. On

June 5, 1992, law-enforcement officers followed the above-described

tractor-trailer to "Ayala's property" near Canton, Texas. There,

future co defendants Richard Gonzalez, Robert Gonzalez and Victor

Garza, both of whom the PSR states were working "for Ayala,"

unloaded the marijuana from the tractor-trailer into a mobile home.

Ayala and Jose Galindo then left in the tractor-trailer and were

apprehended. At the same time, officers detained Richard Gonzalez,

Robert Gonzalez, and Victor Garza at the mobile home. Officers

recovered 32 bundles on Ayala's property containing 643 pounds (291

kilograms) of marijuana.

A defendant's role in the criminal activity for the purpose of

applying guideline section 3B1.1 may be deduced inferentially from

available facts. S ee e.g. United States v. Manthei

, 913 F.2d 1130,

1135 (5th Cir. 1990). Factors to consider include the exercise of

decision making authority, the nature of participation in the

commission of the offense, and the degree of control and authority

exercised over others. U.S.S.G. §3B1.1 comment. (n.4). Here, the

facts in the PSR providing that a substantial quantity of marijuana

was transported to and stored upon Ayala's propert y, with Ayala

present, and that the th ree unloaders, Richard Gonzalez, Robert

Gonzalez, and Victor Garza, were working "for Ayala," supported the

reasonable inference that Ayala was the leader and th e resulting

leadership increase. Accordingly, the district court did not-6-

clearly err in assessing the four-level increase in Ayala's offense

level for his leadership role.

II. ACCEPTANCE OF RESPONSIBILITY

Ayala next contends that he should have received a three-level

reduction to his base offense level for acceptance of

responsibilit y. Ayala bears the burden of demonstrating the

recognition and affirmative acceptance of personal responsibility.

United States v. Mourning

, 914 F.2d 699, 705-06 (5th Cir. 1990);

§3E1.1(a). The crux of his argument is that he pleaded guilty

promptly after being arrested on a fugitive warrant and that his

plea a greement contained a recommendation for an acceptance-ofresponsibility reduction by the government. H e does not object to

the two-level increase for obstruction of justice due to his

abscondence, but asserts that activity does not preclude a finding

of acceptance of responsibility. His argument is unavailing.

We have opined that subsequent coopera tion with law

enforcement officers after flight from custody (constituting

obstruction of justice) did not warrant a finding of acceptance of

responsibility. U nited States v. Ainsworth, 932 F.2d 358, 363 n.3

(5th Cir.), cert. denied , 502 U.S. 918, 112 S.Ct. 327 (1991).

Ayala admits that, whil e on pretrial supervision, he

absconded, was a fugitive for approximately 15 months, and (while

a fugitive) was arrested on a state charge for possession with

intent to distribute marijuana, the same charge he was convicted of-7-

in the instant matter. Ayala has not shown that this is one of

those "extraordinary cases" in which adjustments for both

obstructions o f justice under U.S.S.G. §3C1.1 and acceptance of

responsibility under U.S.S.G. §3E1.1 would be appro priate. S ee

United States v. Rodriguez

, 942 F.2d 899, 903 (5th Cir. 1991),

cert. denied , 502 U.S. 1080, 112 S.Ct. 990 (1992); Ainsworth , 932

F.2d at 363 n.3.

CONCLUSION

For the above stated reasons, Ayala's sentence is AFFIRMED

.