(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should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8542
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAYMOND EUGENE HAWKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-89-CR-118-01HG)
(April 22, 1994)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Defendant-Appellant Raymond Eugene Hawkins was originally
sentenced to 41 months after pleading guilty to possession of
marijuana with intent to distribute under 21 U.S.C. § 841. This
Court vacated Hawkins's sentence and remanded for resentencing.

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2
United States v. Hawkins, No. 90-8173 (5th Cir. Sept. 25, 1991)
(Hawkins I) (unpublished). Hawkins I held that the district court
erred by not articulating the basis for the sentence as required by
Federal Rule of Criminal Procedure 32(c)(3)(D). Hawkins's PSR gave
a four-point increase in offense level for his leadership role in
a criminal enterprise of more than five persons, denied a two-point
reduction for acceptance of responsibility, and denied a two-point
reduction for minor participation. The district court neither
addressed Hawkins's specific objections to the PSR nor explained
how it arrived at a final offense level of 20. On appeal, we
reversed, stating: "An offense level of 20 was certainly a
permissible determination in light of Hawkins's specific
objections, but we do not know which contested facts, if any, the
district court relied on and which of the guidelines it applied."
The mandate issued October 17, 1991.
Resentencing was scheduled for February 11, 1992, but it was
rescheduled to April 21, 1992, then to June 26, 1992, then to July
7, 1992. The sentencing hearing was finally held on September 8,
1992. The record indicates no reasons for the delays.
At the beginning of the resentencing hearing, Hawkins's
counsel stated that, after the initial sentencing, he had received
additional information relevant to sentencing and he had made
updated objections to the PSR. He asked permission to review those
objections with the court.
The court stated that it would first make findings, which it
did. The court stated:

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3
For the record, the Court finds that the Defendant,
Mr. Hawkins, was an organizer or leader of a criminal
enterprise involving five or more participants. The
Court further finds the Defendant was not a minor
participant in the offense conviction [sic].
The Court finds Mr. Hawkins did accept responsibility
for his criminal conduct, resulting in a reduction of
offense level from twenty-two to twenty and reducing the
sentencing guideline range to thirty-three from [sic]
forty-one months in prison.
Now, what is it that you wanted to let the Court know?
Counsel for Hawkins stated that his evidence showed that
Hawkins was in the middle of the drug organization and that he was
unaware of some of the higher levels. The defense counsel stated
that he wanted to submit exhibits supporting that position. He
said that the documents relate to updated objections to the PSR
that were filed a short time before.
The government asserted that Hawkins was a middleman, standing
in between the people that he organized and the higher echelons of
the organization. The entire organization was involved in many
criminal activities, the government stated, but Hawkins was the
leader of the particular conspiracy charged.
The government moved for a reduction in sentence based on
substantial assistance that Hawkins provided in connection with the
investigation and prosecution of individuals in Florida. The court
granted the motion.
Hawkins's attorney again told the court about documents that
bore on Hawkins's role in the offense. He said that they show an
FBI agent's view that Hawkins merely followed orders of his
superiors.

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4
The court responded that it could not evaluate the material
immediately and, if counsel wanted the material to be considered,
such consideration would have to wait until another time. The
government said that he had not seen the material. The court then
said, "They want me to go through this, and I don't have time to do
it. We'll have to recess this hearing for the time being."
Defense counsel responded, "Your Honor, my problem with a
recess, if I may, is that Mr. Hawkins has already served a great
deal of his sentence. He's waited seven months now." Hawkins
interjected that 11 months had elapsed since the remand.
The court let stand the findings announced at the beginning of
the hearing and stated that, because of the reduction for
substantial assistance, the 41-month sentence would not stand. The
court said that it was prepared to pass sentence and asked counsel
if he had any reason why sentence should not be passed at that
time. Hawkins's attorney said no.
Hawkins addressed the court, saying that he had already served
38 months of his sentence and argued against the leader/organizer
adjustment and against a fine. The court then sentenced Hawkins to
serve 24 months in prison and two years on supervised release and
to pay no fine. Hawkins appealed.
In October 1993, Hawkins moved in this Court to supplement the
record and for a remand for a second resentencing. The government
filed a response, to which Hawkins replied. In the motion,
Hawkins's appellate counsel, who had not represented Hawkins at the
resentencing, stated that she was surprised to find that, while

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5
Hawkins's updated objections to the PSR had been delivered to the
probation office and the assistant United States attorney, they had
not been delivered to the district court. She stated that Hawkins
had finished serving his 24-month sentence and was incarcerated in
Florida on another sentence, and she moved to supplement the record
with the updated objections and her own affidavit detailing the
process by which she determined that no objections had been
received by the district court.
A panel of this Court "provisionally granted" the motion as to
the updated objections and denied the motion as to counsel's
affidavit. We ordered the motion for remand carried with the case.
Without leave of court, Hawkins's appellate counsel appended to her
brief four documents that she claims are the exhibits that
Hawkins's trial counsel unsuccessfully attempted to present to the
judge at resentencing. She discusses them at length, arguing that
"The updated objections . . . , coupled with the exhibits that
Hawkins's attorney attempted to introduce at the resentencing . .
. , provided significant support for Hawkins's contention that he
was not a leader of the organization."
As a preliminary matter, we address the status of the four
appended documents. Hawkins's trial counsel asked the district
court to examine exhibits. The court responded that it would
examine them and put off sentencing. The attorney responded that
Hawkins did not want to wait. Before the court passed sentence, it
asked defense counsel if he had any objection, and defense counsel
declined to object. Hawkins's appellate counsel now tells this

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6
Court that the documents appended to the brief are the exhibits
that trial counsel asked the district court to examine at
resentencing.
Even assuming the accuracy of the appellate counsel's
assertion, the appended documents are not properly before this
Court because they were not part of the district court record and
counsel sought no leave to supplement the record with them. See
Abbott v. Equity Group, Inc., 2 F.3d 613, 629 (5th Cir. 1993).
Hawkins was specifically granted provisional leave to supplement
with the updated objections; no such leave was requested or granted
with respect to the exhibits.
Even if counsel had included those exhibits in her request to
supplement the record, they would still be outside the scope of
this Court's review. When an objection is forfeited in the
district court, the Court of Appeals may correct an error that both
is plain and affects a party's substantial rights. United States
v. Olano, ___ U.S. ___, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508
(1993); Fed. R. Civ. P. 52(b). A forfeiture is different from a
waiver. The former is "the failure to make the timely assertion of
a right." Id. The latter is "the intentional relinquishment or
abandonment of a known right." Id. (internal quotation not
indicated). A forfeiture permits "plain error" analysis; a waiver
does not. Id.
"The scope of a remand for resentencing includes new relevant
factors proper in a de novo review." United States v. Kinder, 980
F.2d 961, 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2376

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7
(1993). The district court offered Hawkins's trial counsel
sentencing on the spot without the exhibits, or sentencing later
with the exhibits. Hawkins's attorney chose the former. He
intentionally relinquished Hawkins's right to have the court
examine the exhibits. Any argument based on those exhibits will
not be considered.
Furthermore, even if Hawkins's appellate counsel had included
them in her motion for leave to supplement the record, they would
have been excluded from the provisional grant of the motion. The
appellate counsel's motion was based on the trial counsel's alleged
unawareness that the district court did not have the updated
objections before it. The resentencing transcript shows that the
trial counsel was fully aware that the exhibits were not before the
district court.
The status of the updated objections, which are before this
Court provisionally, is more problematic. As the discussion of the
merits of Hawkins's argument below shows, the updated objections,
along with the waived exhibits, could have made a difference in
sentencing. They make the original objections to the PSR more
concrete and specific. They might have resulted in a three-point
increase for Hawkins being a manager/supervisor rather than a four-
point increase for being a leader/organizer. See U.S.S.G. §
3B1.1(a), (b).
Hawkins I required specific findings. New, relevant
information should have been considered. Kinder, 980 F.2d at 963.
The court apparently was willing to consider any information that

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8
counsel wished to put before it, if only it could have adequate
time to evaluate it. The attorney for Hawkins, however, pressed
the court for a sentence immediately. As discussed below, the
updated objections cite and depend on the exhibits that were not
included with the updated objections. The updated objections carry
some, but less, weight without the documentary support. Had the
defense counsel not objected to the court's offer to recess the
hearing, the factual support for the updated objections would have
been considered. In light of the following discussion of the
merits, which considers portions of the record that were not before
us when we considered the motion to supplement, we now withdraw the
provisional grant of leave to supplement the record.
The Fifth Circuit reviews sentences imposed under the
Sentencing Guidelines to determine whether the district court
correctly applied the guidelines to factual findings that are not
clearly erroneous. United States v. Manthei, 913 F.2d 1130, 1133
(5th Cir. 1990). A clearly erroneous finding is one that is not
plausible in light of the record viewed in its entirety. Anderson
v. City of Bessemer City, 470 U.S. 564, 573-76, 105 S. Ct. 1504, 84
L. Ed. 2d 518 (1985). We will freely review legal conclusions
regarding the guidelines. Manthei, 913 F.2d 1133. The district
court may consider any evidence that has "sufficient indicia of
reliability to support its probable accuracy," including evidence
not admissible at trial, e.g., hearsay. U.S.S.G. § 6A1.3, comment;
Manthei, 913 F.2d at 1138. The PSR itself bears such indicia.
United States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990). A

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9
defendant who objects to consideration of information by the
sentencing court bears the burden of proving that it is "materially
untrue, inaccurate or unreliable." United States v. Angulo, 927
F.2d 202, 205 (5th Cir. 1991). A defendant who disputes
information in the PSR without presenting rebuttal evidence fails
to carry his burden. United States v. Rodriguez, 897 F.2d 1324,
1327 (5th Cir.), cert. denied, 498 U.S. 857 (1990).
Hawkins argues that he should not have been found to have been
a leader or organizer. The guidelines provide that if the
defendant was an organizer or leader of any criminal activity
involving five or more participants, the offense level should be
increased by four. U.S.S.G. § 3B1.1(a). More than one person may
have a leadership role in a criminal activity. Section 3B.1(a),
comment, (n.3).
A leadership adjustment "must be anchored in the defendant's
transaction." United States v. Mir, 919 F.2d 940, 945 (5th Cir.
1990). The Fifth Circuit takes a "common-sense view" of the scope
of that transaction. Id. "It is not the contours of the offense
charged that defines the outer limits of the transaction; rather it
is the contours of the underlying scheme itself." Id.
Seven factors should be considered in making a leadership
finding: "(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 and organizing the offense; (6) the nature and scope of

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10
the illegal activity; and (7) the degree of control and authority
exercised over others." United States v. Barreto, 871 F.2d 511,
512 (5th Cir. 1989) (quoting U.S.S.G. § 3B1.1, comment. (n.3)).
Factual Basis
Hawkins does not contest the basic facts of his offense:
While in Tampa on July 11, 1989, Hawkins telephoned Norman Hassan
in Austin and John Hanes in Tampa to arrange travel to Austin to
purchase marijuana the following day. Hawkins flew to Austin,
where he met Hassan. Hawkins and Hassan then met Hanes, who drove
to Austin from Tampa in a rented car. Hassan drove Hanes's rented
car to his home in Austin, where he met an unidentified man, who
deposited a duffel bag containing 50 pounds of marijuana in the
trunk of the car. At a restaurant in Austin, Hassan turned the car
over to Hawkins and Hanes.
PSR
The PSR provided the following additional details: An
undercover Tampa police officer purchased cocaine from Hawkins in
June 1989 at Hawkins's home in Tampa, at which time Hawkins told
the officer that he would have marijuana and/or more cocaine to
sell in the future. Hawkins purchased large quantities of
marijuana from Hassan, who had Mexican suppliers; they shipped the
marijuana to Florida in motor homes that had concealed storage
compartments. Tampa police had determined that Hawkins was the
leader of a drug trafficking operation. PSR ¶¶ 7-8.
The PSR also stated that Hawkins used Landmark Travel in Tampa
to make the arrangements for his trips for drug trafficking. Hanes

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and Mary Meltzer were the operators of the travel agency. David
Clyde Beane (spelled "Bean" at various places in the record)
provided financing. James Stouffer (spelled "Stauffer" at various
places in the record) and Linda Sacry transported drugs for
Hawkins. Richard Kessens ran errands for him. PSR ¶¶ 9, 21.
The PSR further related that, in his July 11, 1989, phone call
to Hassan, Hawkins arranged to stay at Hassan's home in Austin. In
the call to Hanes, Hawkins instructed him to rent an Alamo rental
car and drive to Austin. PSR ¶ 10. Hawkins recruited Hanes. PSR
¶ 21. During his detention following his arrest, Hawkins
telephoned Kessens, instructing him to dispose of a quantity of
illegal drugs that were in a safe at Meltzer's residence. PSR ¶
15.
Hawkins was given $3500 for the July trip to Austin. He was
to retain $2000 for himself. PSR ¶ 21.
Original objections to PSR
In his original objections to the PSR, Hawkins denied offering
the undercover officer additional quantities of drugs and stated
that the original quantity was small. Hawkins also asserted that
he was only in the lower level of the conspiracy. He claimed to be
merely a "conduit."
He also claimed that he had never purchased drugs from Hassan
prior to the 50-pound quantity described above, nor did he use
motor homes to transport drugs to Florida. He objected to the
inclusion in the PSR of Landmark Travel's role because it is a
legitimate business. He again denied being a leader, and claimed

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12
that Beane was the one who sent him to Texas.
He stated that he was an intermediary in an organization that
included Beane, Hassan, Hanes, and others. His role was to take
instructions from Beane and Richard Imbert and "pass those
instructions along to those who actually perform the task of
running drugs." Only Hanes and Stouffer were under his direction,
he said. He conceded that the organization involved five or more
participants. According to the PSR addendum, the probation officer
made no changes in response to these objections.
Analysis
Hawkins's objections do not demonstrate that the PSR's account
is "materially untrue, inaccurate or unreliable." It merely
provides allegations contradicting the PSR. The PSR reported that
Hawkins exercised decision-making authority over a few individuals.
He recruited or maintained management of a few individuals. He
claimed a larger share of the fruits than Hassan or Hanes. The
illegal activity apparently was widespread, though Hawkins
apparently was not involved in the entire organization that
apparently was controlled by Beane and others. Hawkins exercised
control over others, though perhaps under the direction of Beane
and Imbert.
Based on the PSR and the original objections, and taking all
of the relevant factors together, we cannot say that the district
court clearly erred in finding that Hawkins was a leader.
If the district court had had all of the updated objections
and the inadequately tendered exhibits before it, it is conceivable

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1We note that although Hawkins has reportedly already served
his 24-month sentence, he was also sentenced to a two-year term of
supervised release. Therefore Hawkins may still be "in custody"
for the purpose of 28 U.S.C. § 2255.
13
that the district court would have not made the finding that
Hawkins was a leader. However, the court, due to defense counsel's
choice, did not have such motions and exhibits before it. Counsel
knew the strength of the information that he had; the court did
not. As a court of error, we would be hard-pressed to say that,
because of defense counsel's choice, the district court erred. The
determination of whether Hawkins's trial counsel provided
ineffective assistance, or merely made a tactical choice, will have
to await a 28 U.S.C. § 2255 motion.1
Hawkins may challenge his sentence in a § 2255 motion by
claiming that counsel provided ineffective assistance.
AFFIRMED.
Hawkins's motion for extension of time to file a reply brief
is DENIED.

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