* 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this opinion should not be published and is not precedent except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

February 26, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30318

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIC W. VIGERS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

(2:04-CR-20115-6)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Having pleaded guilty, Eric W. Vigers challenges his sentences

for conspiracy to interfere with commerce by robbery, in violation

of 18 U.S.C. §§ 371, 2, and interference with commerce by robbery,

in violation of 18 U.S.C. §§ 1951(a), 2. (He does not contest his

sentence for using a firearm during a crime of violence.)

Vigers contends the district court’s Guideline’s §

2B3.1(b)(4)(B) offense-level enhancement, applicable if a person

was “physically restrained to facilitate the commission of the
2

offense or to facilitate escape”, was reversible error because his

physically restraining victims during a robbery of the Lucky

Peacock Casino was neither alleged in the indictment nor admitted

to in his guilty plea’s factual basis.

Notwithstanding Vigers’ maintaining in his reply brief that

this contention was raised in district court, it is, instead,

raised for the first time on appeal. Accordingly, our review is

only for plain error. See United States v. Olano, 507 U.S. 725,

732-35 (1993). Under such review, Vigers must show a clear or

obvious error that affected his substantial rights. E.g., United

States v. Castillo, 386 F.3d 632, 636 (5th Cir. 2004). Even then,

we retain discretion to correct the error; ordinarily, we will not

do so unless it “affects the fairness, integrity, or public

reputation of judicial proceedings”. Id. (citation omitted). 

Even after United States v. Booker, 543 U.S. 220 (2005), a

presentence investigation report (PSR) is presumed to be

sufficiently reliable such that a district court may properly rely

on it during sentencing. See United States v. Arviso-Mata, 442

F.3d 382, 385 n.10 (5th Cir.), cert. denied, 126 S. Ct. 2309

(2006); see also United States v. Ramirez, 367 F.3d 274, 277 (5th

Cir. 2004). The defendant bears the burden of demonstrating

information relied upon by the district court in sentencing to be

materially untrue. See United States v. Davis, 76 F.3d 82, 84 (5th

Cir. 1996). If the defendant fails to offer rebuttal evidence to
3

refute information in the PSR, the sentencing court is free to

adopt that information without further inquiry. See United States

v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).

The district court did not err in attributing the physical

restraint of robbery victims at the casino to Vigers. The PSR

provided: two of Vigers’ co-conspirators remembered him being

personally involved in the robbery; and victims of that robbery

were physically restrained. Vigers offered no evidence to rebut

the facts contained in the PSR. Moreover, because the robbery was

within the scope of the conspiracy to which Vigers pleaded guilty,

even if he did not personally restrain the victims, his coconspirators physically restraining the victims could be attributed

to him, as such action was foreseeable given the nature of the

offense. See U.S.S.G. § 1B1.3(a)(1)(B) (in the case of a jointlyundertaken criminal activity, a defendant’s offense level shall be

determined based upon “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity”); United States v. Burton, 126 F.3d 666, 678

(5th Cir. 1997). Accordingly, there was no error, plain or

otherwise, with respect to the enhancement.

Vigers’ contention regarding the reasonableness of his

sentences has not been adequately briefed and is, therefore,

considered abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
4

(5th Cir. 1993); United States v. Thames, 214 F.3d 608, 612 n.3

(5th Cir. 2000).

AFFIRMED