IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10966

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSEPH DESHUN JOHNSON, also known as Deshun Joseph Johnson, also

known as Buck,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CR-98-33

Before WIENER, PRADO and OWEN, Circuit Judges.

PER CURIAM:

*

Joseph Deshun Johnson pleaded guilty to conspiracy to possess with the

intent to distribute more than five kilograms of cocaine. The district court

sentenced Johnson to a below-guidelines sentence of 324 months of

imprisonment. Johnson appeals his sentence, arguing that the district court

clearly erred in adopting the presentence report’s (PSR’s) finding that he

converted a majority of his powder cocaine into crack cocaine.

United States Court of Appeals

Fifth Circuit

F I L E D

October 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: 09-10966 Document: 00511272538 Page: 1 Date Filed: 10/25/2010
No. 09-10966

The Government argues that Johnson’s argument is not reviewable on

appeal because he withdrew his objection to the determination at the sentencing

hearing. Perceiving no intentional withdrawal of Johnson’s objection to the PSR,

we reject the Government’s assertion of a waiver. See United States v. ArvisoMata, 442 F.3d 382, 384 (5th Cir. 2006).

Turning to the merits of the appeal, we review the district court’s factual

finding for clear error. United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th

Cir. 2005). “In making its factual findings for sentencing, a district court may

adopt the findings of the PSR without additional inquiry if those facts have an

evidentiary basis with sufficient indicia of reliability and the defendant does not

present rebuttal evidence or otherwise demonstrate that the information is

materially unreliable.” United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009)

(internal quotation marks and citation omitted). The information contained in

the offense conduct portion of Johnson’s PSR was gleaned from, inter alia,

“investigative material prepared and compiled by FBI and ATF agents/TFOs

[task force officers], DPS deputies, and Arlington and Fort Worth Police

Department officers.” The PSR stated that the probation officer had personally

conducted interviews with two FBI Special Agents and an ATF Special Agent,

all of whom were identified by name. Further, in response to Johnson’s

objection,the probation officer stated that her information was derived from “the

investigative materials and the reports of several reliable codefendants.”

The PSR was supported by an adequate evidentiary basis with sufficient

indicia of reliability. Johnson did not present any rebuttal evidence; nor did he

demonstrate that the information was materially unreliable. The district court

thus did not clearly err in adopting the finding made in the PSR. See Ford, 558

F.3d at 377.

AFFIRMED.

2

Case: 09-10966 Document: 00511272538 Page: 2 Date Filed: 10/25/2010