IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40580

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CAROL CHERI THOMAS,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:12-CR-141

Before SMITH, BENAVIDES and HAYNES, Circuit Judges. 

PER CURIAM:*

Carol Thomas appeals from her sentence following her guilty plea 

conviction on three counts of mail fraud. The district court sentenced Thomas 

to 57 months of imprisonment based, in part, upon a two level adjustment for 

obstruction of justice pursuant to U.S.S.G. § 3C1.1. She argues on appeal that 

the district court erred in making the § 3C1.1 adjustment because she made 

statements in a verified objection to her presentencing report that prove that 

 

* 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

January 15, 2016

Lyle W. Cayce

Clerk

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No. 15-40580

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she did not “willfully” take any actions to obstruct or impede the 

administration of justice. According to Thomas, because the Government 

failed to submit any evidence to rebut the statements in her verified objection, 

the district court erred in making the adjustment.

This court reviews “the district court’s legal interpretation of the 

Sentencing Guidelines de novo and factual findings for clear error.” United 

States v. Brooks, 681 F.3d 678, 712 (5th Cir. 2012). A factual finding is clearly 

erroneous if it is implausible in light of the record as a whole. See United States 

v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). “When making factual findings 

for sentencing purposes, a district court may consider any information which 

bears sufficient indicia of reliability to support its probable accuracy.” United 

States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (internal quotation marks 

and citation omitted); § 6A1.3 (court may consider “relevant information 

without regard to its admissibility under the rules of evidence applicable at 

trial”).

Generally, “a PSR bears sufficient indicia of reliability, such that a 

sentencing judge may consider it as evidence in making the factual 

determinations required by the Sentencing Guidelines.” Huerta, 182 F.3d at 

364. A district court, therefore, may adopt the facts contained in a PSR 

“without further inquiry if those facts have an adequate evidentiary basis with 

sufficient indicia of reliability and the defendant does not present rebuttal 

evidence or otherwise demonstrate that the information in the PSR is 

unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal 

quotation marks and citation omitted). Facts in a PSR that do have an 

adequate evidentiary basis can only be refuted by the defendant with “rebuttal 

evidence demonstrating that those facts are ‘materially untrue, inaccurate or 

unreliable.’” Harris, 702 F.3d at 230 (quoting Huerta, 182 F.3d at 364). A 

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defendant’s “[m]ere objections do not suffice as competent rebuttal evidence.” 

United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998) (citing United States 

v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994)). 

In making a § 3C1.1 upward adjustment to Thomas’s sentence, the 

district court relied upon the findings contained in her presentencing report. 

Those findings had an “adequate evidentiary basis with sufficient indicia of 

reliability,” Harris, 702 F.3d at 230, based upon the statements made by the 

Government at Thomas’s sentencing hearing. Although Thomas’s sworn 

objection contained statements which refuted the findings of the presentencing 

report, Thomas did not testify at the sentencing hearing and she otherwise 

offered no evidence in support of her objections. Because Thomas failed to 

refute the facts in her presentencing report with evidence demonstrating that 

those facts are “materially untrue, inaccurate or unreliable,” Huerta, 182 F.3d 

at 364, Thomas cannot establish that the district court’s findings are clearly 

erroneous or implausible in light of the record as a whole. Accordingly, the 

district court’s assessment of a two-level upward adjustment on the basis of 

§ 3C1.1 and corresponding refusal to make any downward adjustment based 

on § 3E1.1 were proper. 

The judgment of the district court is AFFIRMED.

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