IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10599

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICHARD AIELLO, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CR-149-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Following a jury trial, Richard Aiello, III, was found guilty of one count of

conspiracy to distribute and possess with intent to distribute 50 grams or more

of methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(B), and 846.

The district court sentenced Aiello to 262 months imprisonment and four years

supervised release. He now appeals the district court’s denial of his motion to

suppress and the sentence imposed. Finding no error, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 25, 2010

Lyle W. Cayce

Clerk

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.

Case: 09-10599 Document: 00511214649 Page: 1 Date Filed: 08/25/2010
No. 09-10599

Aiello first contends that the search warrant affidavit was based on stale

information and failed to establish a nexus between the illegal activity and his

residence. The issue before the court is the applicability of the “good faith”

exception to the exclusionary rule, and specifically whether the warrant lacked

sufficient indicia of probable cause “as to render official belief in its existence

entirely unreasonable.” United States v. Gant, 759 F.2d 484, 487 (5th Cir. 1985)

(internal quotation marks and citation omitted). We review factual findings on

a motion to suppress for clear error and determinations regarding the

reasonableness of an officer’s reliance on a warrant and the sufficiency of the

warrant de novo. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999).

The affidavit showed an ongoing pattern of criminal activity, relying on

detailed information from a confidential source (CS) who made regular

purchases from Aiello at his home. Although the CS discontinued dealing with

Aiello in January 2008, the CS resumed purchases sometime in May 2008, and

the CS made a controlled purchase from Aiello on June 24, 2008. During the

controlled purchase, drug agents observed Aiello return to his home for a brief

time before delivering the contraband to the CS at another location. The search

warrant was executed the following day. On these facts, we do not conclude that

the affidavit was so lacking in indicia of probable cause due to staleness or an

insufficient nexus that reliance on it was objectively unreasonable. See United

States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997); United States v.

Broussard, 80 F.3d 1025, 1034 (5th Cir. 1996). Accordingly, we find no error in

the district court’s suppression ruling. Thus, we need not reach the

Government’s alternate contention that any error in the admission of the

evidence was harmless.

Aiello next argues that the district court erroneously attributed 4,536

grams of methamphetamine to him as relevant conduct. The amount at issue

is the estimated amount of methamphetamine that David White sold to Jeff

Berry, which was attributed to Aiello on the basis that he was White’s supplier.

2

Case: 09-10599 Document: 00511214649 Page: 2 Date Filed: 08/25/2010
No. 09-10599

Aiello contends that no evidence established that he was supplying White or that

he was a part of the conspiracy during the relevant time period.

A district court’s calculation of the quantity of drugs involved in an offense

is a factual determination that is reviewed for clear error. United States v.

Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). In the absence of rebuttal

evidence, the district court may adopt the facts contained in the presentence

report (PSR) so long as those facts have an adequate evidentiary basis. See

United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). The district court

has “wide discretion in determining which evidence to consider and which

testimony to credit.” United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).

Here, the PSR stated that Berry knew that Aiello was White’s supplier

because Berry and White had picked up methamphetamine from Aiello on at

least two occasions. That is supported by other evidence in the record,

specifically testimony at the suppression hearing from a federal agent that Berry

and Brooke Cooper implicated Aiello as White’s supplier. As a finding that

Aiello was White’s supplier is plausible in light of the record as a whole, we find

no clear error in the district court’s drug quantity determination. See United

States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002).

The judgment and sentence of the district court are AFFIRMED.

3

Case: 09-10599 Document: 00511214649 Page: 3 Date Filed: 08/25/2010