(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
Nos. 92-2092 & 92-3058
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IVAN ALEJANDRO GONZALEZ-RELOVA,
Defendant-Appellant.
- - - - - - - - - -
Appeals from the United States District Courts
for the Eastern District of Louisiana and
the Southern District of Texas
USDC Nos. 89-442 "H" (5) (E.D. La.) &
H-91-71 (S.D. Tex.)
- - - - - - - - - -
March 17, 1993
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Ivan Alejandro Gonzalez-Relova (Gonzalez) appeals his
sentences on two grounds: 1) he was improperly denied a two-
point reduction for acceptance of responsibility; and 2) the
sentencing judge failed to make specific factual findings
concerning the amount of cocaine involved in the Southern
District of Texas conspiracy, whether Gonzalez was a leader or
organizer of the Eastern District of Louisiana conspiracy, and
whether Gonzalez attempted to escape from prison. The sentencing

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Nos. 92-2092 & 92-3058
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judge did not fail to make factual findings regarding that amount
of cocaine involved in the conspiracy or whether Gonzalez was a
leader or organizer; however, the sentencing judge did err by
holding as a matter of law that Gonzalez was not entitled to a
two-point reduction for acceptance of responsibility.
U.S.S.G. § 3E1.1 dictates the circumstances under which a
defendant may be entitled to an adjustment for acceptance of
responsibility. "Conduct resulting in an enhancement under
§ 3C1.1 (Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct. There may, however, be
extraordinary cases in which adjustments under both §§ 3C1.1 and
3E1.1 may apply." § 3E1.1, comment. (n.4).
Attempts to escape from custody before sentencing constitute
the obstruction of justice under § 3C1.1. § 3C1.1, comment.
(n.3(e)). The sentencing judge stated that "as a matter of law .
. . an attempt to escape . . . is inconsistent with awarding a
reduction for acceptance of responsibility." This was error.
The sentencing judge was not completely divested of discretion by
the language of the guidelines, and he could have found that
Gonzalez's case was extraordinary and that Gonzalez was entitled
to a reduction for acceptance of responsibility despite the
escape attempt.
When a defendant alleges a factual inaccuracy in the pre-
sentence report (PSR), the sentencing judge must either 1) make a
factual finding as to the inaccuracy or 2) determine that no
finding is necessary because the matter will not be taken into

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Nos. 92-2092 & 92-3058
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account at sentencing. FED. R. CRIM. P. 32(d)(3)(D). Gonzalez
argues that the sentencing judge failed to make findings of fact
that 1) he was a leader or organizer in the conspiracy in the
Eastern District of Louisiana conviction, 2) there was a
conspiracy to import over 2,000 kilograms of cocaine in the
Southern District of Texas conviction, and 3) he attempted to
escape from prison.
The PSR bears sufficient indicia of reliability to be
considered as evidence in making factual determinations. United
States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990). Gonzalez
concedes that the probation officer determined in the PSR that he
was a leader and organizer. Gonzalez nevertheless argues that
the sentencing judge "must support upward departures by clearly
articulated specific grounds on the record." The sentencing
judge complied with Rule 32 concerning Gonzalez's status as a
leader or organizer of the conspiracy.
Gonzalez argues that the sentencing judge violated Rule 32
by not giving him the opportunity to rebut the charge that he was
responsible for 2,727 kilograms of cocaine and that the court
foreclosed the opportunity for rebuttal by adopting the findings
in the PSR without question. Gonzalez raised the issue of the
quantity of cocaine at the sentencing hearing. He argued that he
was not responsible for the amount of cocaine intended to be
imported by the conspiracy, but was responsible for only the
337.9 kilograms of cocaine successfully imported into the United
States.
The sentencing judge correctly stated that Gonzalez was

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responsible for the reasonably foreseeable activity of the
conspiracy and sustained the quantity finding in the PSR. See
§ 1B1.3 comment. (n.1) (in the case of a conspiracy, the
defendant is accountable for the conduct in furtherance of the
conspiracy that is reasonably foreseeable). The sentencing judge
complied with Rule 32 by the specific finding that Gonzalez was
responsible for the 2,727 kilograms the conspiracy intended to
import.
The sentencing judge did make a finding that there was
evidence that Gonzalez attempted to escape from prison; however,
the sentencing judge erred in his determination that an escape
attempt precludes a reduction as a matter of law.
The sentences are VACATED and the case is REMANDED for
findings only on the issue of acceptance of responsibility. We
express no opinion whether Gonzalez is entitled to a reduction
for acceptance of responsibility; however, Gonzalez cannot be
precluded from the reduction as a matter of law.

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