IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10761

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

WILLIAM WALTER RAINEY,

Defendant - Appellant

Appeal from the United States District Court

for 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 within-guidelines sentence

imposed following his guilty plea to conspiracy to distribute and to possess with

intent to distribute heroin. He asserts that the district court 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 reduction in his offense level pursuant to

U.S.S.G. § 3E1.1 because he accepted responsibility for his actions. We

AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

September 9, 2013

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: 12-10761 Document: 00512366772 Page: 1 Date Filed: 09/09/2013
No. 12-10761

I.

Rainey and nine co-conspirators were charged in a single-countindictment

with conspiracy to distribute and to possess with intent to distribute 100 grams

or more of heroin, a violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1). Rainey

pleaded guilty without a written plea agreement but signed a factual resume. 

In the factual resume, Rainey stipulated that he and his co-conspirators

distributed heroin supplied both by Mario Guerra-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 occasion he directed Metzler to

obtain an ounce of heroin directly from Guerra-Rocha. Rainey agreed that he

and nine co-conspirators conspired together to possess with intent to distribute

more than 100 grams of heroin.

The Pre-sentence Investigation Report (“PSR”) further summarized

Rainey’s offense conduct, in part, as follows: (1) from 2007 to October 21, 2011,

Rainey operated a heroin-trafficking operation separately from Guerra-Rocha’s

organization; (2) Rainey was the organizer and leader of the operation for at

least 48 months, during which time he directed Metzler and Jessica Lynn

Browder in distributing quantities of heroin weekly; (3) Diaz was Rainey’s

primary supply source, but Rainey occasionally received heroin from GuerraRocha; (4) Metzler and Browder confirmed that they worked for Rainey in the

distribution of heroin; and (5) Metzler distributed 2.4 kilograms of heroin, and

Browder distributed 553.02 grams of heroin. In an interview, Rainey also

informed the probation officer that, before he began employing Metzler as a

runner and distributor, he and Metzler were once partners in trafficking heroin. 

Rainey further admitted that he employed Jordan Davis as a heroin distributor

for one year. Lastly, Rainey acknowledged “he was aware that Aaron Miles and

Jessica Browder used and sold heroin, but he stated they did not work for him.”

2

 Case: 12-10761 Document: 00512366772 Page: 2 Date Filed: 09/09/2013
No. 12-10761

At sentencing, the district court overruled Rainey’s objections and adopted

the PSR as modified by the addendum and as modified or supplemented by any

facts found by the court. The court determined that the advisory guidelines

range was 360 to 480 months, ultimately sentencing Rainey to a 360-month term

of imprisonment. Rainey timely appealed.

II.

We first address Rainey’s contention that the district court committed a

significant procedural error in applying a four-level aggravating-role 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 direction of two participants, he

argues that the four-level increase was not warranted. He further asserts that

the increase was improper because the information in the PSR is incomplete,

contradictory, and lacking sufficient indicia of reliability.

We review the district court’s interpretation and application of the

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

States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Whether a

defendant is 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 of the record as a whole.” United States v. Caldwell, 448

F.3d 287, 290 (5th Cir. 2006). Furthermore, “a district court 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.” 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 of a criminal activity that involved five or more

participants or was otherwise extensive.” “A participant is a person who is

criminally responsible for the commission of the offense, but need not have been

3

 Case: 12-10761 Document: 00512366772 Page: 3 Date Filed: 09/09/2013
No. 12-10761

convicted.” § 3B1.1, comment., app. n.1. In determining whether an individual

was “an organizer or leader,” we consider various factors 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 of the fruits of the crime;” (5) “the degree of participation

in planning or organizing the offense;” (6) “the nature and scope of the illegal

activity;” and (7) “the degree of control and authority exercised over others.” Id.

app. n.4. “The district court may find that a defendant exercised a

leader/organizer role by inference from the available facts.” Cabrera, 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 supervised two individuals,

our prior decision in United States v. Cooper forecloses his argument. 274 F.3d

230, 247 (5th Cir. 2001) (“Proof that the defendant supervised only one other

culpable participant is sufficient to make the defendant eligible for the

enhancement.”). Furthermore, the PSR contains numerous factual findings,

citing statements given by other participants in the criminal enterprise, that

support the conclusion that Rainey was “an organizer or leader” within the

meaning of section 3B1.1(a). Because the district court expressly adopted the

PSR, as modified, Rainey was required to present rebuttal evidence

demonstrating that the factual findings were 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.

Rainey further contends the record does 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, however, that he

and nine co-conspirators conspired to possess heroin with the intent to distribute

the same. His stipulation alone demonstrates that the criminal activity

“involved five or more participants or was otherwise extensive.” Cooper, 274

4

 Case: 12-10761 Document: 00512366772 Page: 4 Date Filed: 09/09/2013
No. 12-10761

F.3d at 247 (“At least five participants in the criminal activity are found by

looking at the codefendants . . . .”). The district court therefore did not err in

imposing a four-level enhancement pursuant to section 3B1.1(a).

III.

We next address Rainey’s argument that the district court erred in

denying him credit for acceptance of responsibility. In order for a defendant to

receive a reduction in offense level under section 3E1.1, he must “clearly

demonstrate[] acceptance of responsibility for his offense.” § 3E1.1(a). The

defendant bears the burden of demonstrating that the reduction is warranted. 

United States v. Watson, 988 F.2d 544, 551 (5th Cir. 1993). “While the district

court’s findings under the sentencing guidelines are generally reviewed for clear

error, a determination whether a defendant is entitled to an adjustment for

acceptance of responsibility is reviewed with even greater deference.” United

States v. Buchanan, 485 F.3d 274, 287 (5th Cir. 2007). We “will affirm a

sentencing court’s decision not to award a reduction” pursuant to 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 district court’s reasons for

denying him an acceptance of responsibility reduction are not clear from the

record,1the district court expressly stated at sentencing that it based its finding

on Rainey’s denial to the probation officer that Browder and Miles were

employed by him to distribute heroin. As previously stated, Rainey told the

probation officer in an interview that he was aware Miles and Browder used and

sold heroin, but he denied that they worked for him.

1 Specifically, he argues that: (1) the reasons for the district court’s denial of credit for

acceptance of responsibility are unclear; (2) any inaccurate or false information he provided

“does not comport with the balance of information given by [him];” (3) “simple semantics”

explain his answer to the probation officer’s question regarding Browder and Miles; (4) he and

the probation officer may have been referencing different time frames; (5) the PSR failed to

clearly specify what Miles and Browder did for Rainey; and (6) the PSR failed to sufficiently

set forth the details of the information Rainey provided as to Miles and Browder.

5

 Case: 12-10761 Document: 00512366772 Page: 5 Date Filed: 09/09/2013
No. 12-10761

ThePSR,however, provided significant evidence supporting the conclusion

that Browder and Miles, among others, had sold heroin for Rainey; indeed,

Browder herself acknowledged in a post-arrest statement that “she distributed

. . . heroin for [one and a half years] on behalf of Rainey. . . . to four to five

regular customers each week.” Moreover, an indicted co-conspirator told the

probation officer that Rainey employed Metzler, Davis, Browder, and Miles as

heroin distributors. The record thus provided a foundation for the district court

to conclude that Rainey falsely denied conduct relevant to his criminal activities.

“[A] defendant who falsely denies, or frivolously contests, relevant conduct

that the court determines to be true has acted in a manner inconsistent with

acceptance of responsibility.” § 3E1.1, comment., app. n.1(A). In this case, the

district court—after considering the PSR, Rainey’s objections, and the PSR

addendum—was not convinced that Rainey had accepted responsibility for

purposes of section 3E1.1. Despite his protestations to the contrary, Rainey has

not met his burden of showing that the district court’s denial of a reduction for

acceptance of responsibility was entirely “without foundation.” See JuarezDuarte, 513 F.3d at 211.

IV.

For the reasons stated above, the judgment of the district court is

AFFIRMED.

6

 Case: 12-10761 Document: 00512366772 Page: 6 Date Filed: 09/09/2013