### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10761

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. WILLIAM WALTER RAINEY, Defendant - Appellant

Appeal from the United States District Court f or the Northern District of Texas No. 4:11-CR-180-10

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges. PER CURIAM: * William Walter Rainey appeals the 360-month w ithi n - gu idelines s entence imposed following his guilty plea to conspiracy to distribute and to possess with intent to distribute heroin. He asserts that the district c ourt procedurally erred in: (1) applying a four-level aggravating-role increase pursuant to U.S.S.G. § 3B1.1(a); and (2) denying him a r eduction i n h is offense level pursuant to U.S.S.G. § 3 E 1

. 1 because he a ccepted responsibility for his actions. We AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Septem ber 9, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10761 Document: 00512366772 Page: 1 Date Filed: 09/09/2013No. 12-10761 I. Rainey and nine co-conspirators were char g e d i n a s i n gl e - c o u nt i n dictment with conspiracy t o distribute and to possess with intent to distribute 100 grams

or m ore of heroin, a v i o l a tion of 21 U.S.C. §§ 8 46, 841(a)(1), (b)(1). Rainey pleaded guilty without a written plea agreement but signed a factual resume. In the factual resume, Rainey stipulated t h a t he a nd his co-conspirators d i s t r ibuted heroin s upplied both by Mario G uerra-Rocha and Agusten Diaz. Additionally, Rainey directed another participant, Timothy Metzler, who helped him distribute heroin by, for example, driving him to obtain heroin from Diaz. Rainey also acknowledged that on at least one occasio n he directed Metzler to obtain an ounce of h eroin directly from Guerra-Rocha. Rainey agreed that he and nine co-conspirators c onspired together to possess w ith intent to distribute more than 100 grams of heroin. The Pre-sentence Investigati o n Report (“PSR”) further summarized Rainey’s offense conduct, in part, as follows: (1) from 2007 to October 2 1, 2011, Rainey operated a heroin-trafficking operation separately from Guerra-Rocha’s organization; (2) Rain e y w a s the organizer and leader of the operation for at least 4 8 months, during which time h e directed M etzler a nd J essica Lynn Browder in distributing quantities of heroin weekly; (3) D iaz was Rainey’s primary supply source, b ut Rainey occ a s i o n ally received heroin from GuerraRocha; (4) Metzler a nd Browder confirmed that they worked for Rainey in the distribution of heroin; and (5) Metzler distributed 2.4 kilograms of heroin, and Browder distribute d 5 5 3

. 02 grams of h eroin. I n an interview, Rainey also informed the probation officer that, before he began e mploying Metzler as a

runner and di stributor, he and Metzler were once p a rtners i n trafficking heroin. Rainey further admitted that he employed Jordan Davis as a heroin distributor for one year. L astly, Rainey acknowledged “he was aware that Aaron Miles and Jessica Browder used and sold heroin, but he stated they did not work for him.”

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At sent e n c i n g , the district court overruled Rainey’s objections and adopted the P SR as modified by the addendum and as modified o r supplemented by any facts found by the court. T h e court determined that the advisory guidelines range w as 360 to 4 80 months, ultimately sentencing R ainey to a 360-month term of imprisonment. Rainey timely appealed. I I. We first a ddress R a i n e y ’ s contention that the district c ourt committed a significant procedural error in applying a four-level aggravating- r ole increase pursuant to section 3B1.1(a). While Rainey concedes that a two-level increase

was proper under section 3B1.1(c) based on his di rection of two participants, he argues that the four-level i ncrease was n ot warranted. He further asserts that the increase was improper because the information i n the PSR is i n c o mplete, contradictory, and lacking sufficient indicia of reliability. We r e v i e w the district court’s interpretation and application of the Sentencing Guidelines de novo , and its factual findings for clear error. United States v. Cisner o s - G u t i errez , 517 F.3d 751, 764 (5th Cir. 2008). Whether a d e f e n d a n t i s an organizer or leader under section 3B1.1(a) is a factual determination that this court reviews for clear error. United States v. Cabrera , 288 F.3d 163, 173 ( 5th Cir. 2002). A factual finding is not clearly erroneous if it “is plausible in light o f the record as a whole.” United States v. Caldwell , 448 F.3d 2 87, 290 (5th Cir. 2006). Furthermore, “a district court may a dopt the facts contained in a PSR without further inquiry if those facts have an a dequate evidentiary basis w ith sufficient indicia of reliability and the defendant does not present r ebuttal evidence or o therwise demonstrate that the information in the PSR is unreliable.” Cabrera , 288 F.3d at 173-74

. Section 3B1.1(a) provides for a four-level enhancement “[i]f the defendant

was an organizer or leader o f a criminal a cti v i t y t h at involved five or more participan t s o r w as otherwise extensive.” “A participant is a person who is criminally responsible for the commission of the o ffense, but need not have been
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convicted.” § 3B1.1, comment., app. n.1. In determining whether an individual

was “an organizer or leader,” we c onsider v ar i o u s f a c t ors including: (1) “the exercise of decision making authority;” (2) “the nature of participation in the commission of the offense;” (3) “the recruitment of accomplices;” (4) “the claimed right to a larger share o f the fruits of the c rime;” (5) “the degree of p a rticipation in planning or organizing the offense;” ( 6) “the n a t u r e and scope of the illegal activity;” and (7) “the degree of control and authority exercised o ver others.” I d.

a p p . n .4. “The district c ourt may find that a defendant exercised a leader/organizer role by inference from the available facts.” C a b rera , 288 F.3d at 174. To the extent Rainey’s argument can best be characterized as being that he was not “an organizer or leader” because he only s upervised t wo individuals,

our p rior decision i n United States v. Cooper forecloses his argument. 274 F.3d 230, 247 (5th Cir. 2001) (“ Proof that the defendant supervised o n ly one other culpa b l e p a r ticipant is s ufficient t o make the defendant e ligible for the enhancement.”). Furthermore, the PSR contains numero u s f actual findings, citing statements given by other participants in t h e c r i minal enterprise, that support the con c l u s i o n t hat Rainey was “an organizer or leader” within the meaning of section 3B1.1(a). Because the dist r i c t c o u r t expressly adopted the PSR, as modified, Rainey was required to present rebuttal evidence demonstrating that the factual f i ndings w ere unreliable. He has not done so, however, beyond his mere assertions. The district court thus did not clearly err in finding him to be a leader of the conspiracy. R a i ney further contends the record d oes not support the district court’s finding that the criminal activity “involved five or more participants or was otherwise extensive.” § 3B1.1(a). Rainey expressly stipulated, h owever, that he and nine co-conspirators conspired to possess h e r o i n with the intent to distribute the s ame. His stipulation alone demonstrates that th e c r i m inal activity “involved five or more participants or w a s o t h e rwise extensive.” Cooper , 274
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F

. 3d at 247 (“At least five participants in the criminal a ctivity are f o u n d b y looking at the codefendant s . . . . ”). The district court therefore did not err in imposing a four-level enhancement pursuant to section 3B1.1(a). III. We next address Raine y ’ s a rgument that the district court erred in denying him credit for acceptance of responsibility. In order for a defendant to receive a reduction in o ffen s e level under section 3E1.1, he must “clearly demonstrate[] accep t a n c e o f responsibility for his offense.” § 3E1.1(a). The defendant bears the burden of demonstrating that the reduction i s warranted. United States v. Watson , 988 F.2d 544, 551 (5th Cir. 1993)

. “While the district court’s findings under the sentencing guidelines a re generally r eviewed for clear
error, a determination whether a defendant is entitled t o an adjus t m e n t for acceptance of responsibility i s reviewed with even gr e a t er deference.” United State s v . B u c h a n an , 485 F.3d 274, 287 ( 5th Cir. 2007). W e “will a ffirm a sentencing c ourt’s decision not to award a reduction” p ursuant t o section 3E1.1 unless the decision is “without foundation.” United States v . Juarez-Duarte , 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks and citation omitted). Although Rainey generally argues that the dist r i c t court’s reasons for denying him an acceptance o f responsibility reduction a re not clear from the record, 1 the district c ourt expressly stated at sentencing that it based its finding

on Rainey’s denial t o the probation officer that Browder and Miles were employed by him t o distribute heroin. As previously stated, R a i n ey told the probation officer in a n interview that he was aware Miles and Browder used and sold heroin, but he denied that they worked for him.

1 Sp ecif ically, he argues that: ( 1) the reas ons f or the d is trict court’s d enial of cred it f or accep tance of res p ons ibility are unclear; ( 2) any inaccurate or f als e inf orm ation he p rovid ed “d oes not com p ort with the ba lance of inf orm ation given by [him ] ;” ( 3) “s im p le s em antics ” exp lain his ans w er to the p robation of f icer’s ques tion regard ing Brow d er and M iles ; (4) he and the p robation of

ficer m ay have been ref erenc i n g d if

f erent tim e fram es ; ( 5) the PSR f ailed to clearly s p ecif

y w hat M iles and Brow d er d id f or Rainey; and (6) the PSR failed to s uf f iciently s et f orth the d etails of the inf orm ation Rainey p rovid ed as to M iles and B row der.

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Th e P S R , h o w ev e r , p r ovi d e d s i gnif i c a nt evi d e nc e supporting the con c l u s i o n that Browder and Miles, among others, h a d s o l d heroin f or Rainey; indeed, Browder herself acknowledged in a post-arrest statement that “she distributed

. . . heroin for [o n e and a half years] on behalf of Rainey.

. . . to four to five regular customers e ach week.” Moreover, an indicted co-conspirator told the
p r o bation officer that Rainey employed Metzler, D avis, Browder, and Miles as heroin di stributors. The record thus provided a foundation f or the district court to c onclude that Rainey falsely denied conduct relevant to his criminal a ctivities. “[A] defendant who f

alsely denies, or frivolously c ontests, r e levant conduct that the court d e t e r m i n e s to be true has acted i n a manner inconsistent with acceptance o f responsibility.” § 3E1.1, comment., app. n.1(A). In this case, the district court—after considering t h e PSR, Rainey’s objections, and the PSR addendum—was n ot convinced that Rainey had a ccepted r e s p o n sibility for
purposes of section 3E1.1. D espite his protestations to the contrary, Rainey has not met his burden o f showing that the district court’s denial of a reduction for acceptance of responsibility was ent i r e ly “without foundation.” See JuarezDuarte , 513 F.3d at 211. IV. For the reasons stated above, the judgment of the district court is AFFIRMED.

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