United States v. Riojas

* 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this opinion should not be published and is not precedent except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
F I L E D
May 20, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20478
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO RIOJAS, also known as
Roberto Riojas-Sandoval,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CR-142-1)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Roberto Riojas appeals his life-sentence based upon his
guilty-plea conviction for engaging in a continuing criminal
enterprise and conspiracy to launder monetary instruments. Riojas
contends the prosecutor knowingly failed to disclose that the
presentence investigation report (PSR) contained inaccurate
information and the district court erred in (1) calculating the
amount of marijuana attributed to him for sentencing purposes; and

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(2) denying him an adjustment for acceptance of responsibility.
(Riojas originally claimed the court also erred by enhancing his
sentence for obstruction of justice. Riojas concedes in his reply
brief, however, that the district court did not so enhance his
sentence.)
Because the appeal-waiver provision, here, was broad and
appeal-waiver provisions are construed against the Government, it
does not preclude review of the above issues. United States v.
Somner, 127 F.3d 405, 407-08 (5th Cir. 1997).
Riojas asserts the prosecutor knowingly failed to disclose the
PSR inaccurate information, which was material to his sentence.
The inaccurate information stems from purported discrepancies
between the PSRs for Riojas and codefendant Armando Pena, Jr.
Riojas, however, has not provided this court with a copy of Pena’s,
as is his burden. United States v. Coveney, 995 F.2d 578, 587 (5th
Cir. 1993). Nor is Pena’s PSR part of the district court record.
Because Pena's PSR is not properly before this court, Riojas’s
prosecutorial-misconduct claim fails. See United States v. Flores,
887 F.2d 543, 546 (5th Cir. 1989).
Riojas claims the district court erred in its drug-quantity
calculation. Because a PSR is sufficiently reliable for making
factual determinations and because Riojas offered no contradictory
evidence, the district court did not clearly err by accepting the
PSR's calculation of the amount of drugs attributable to him.

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United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999), cert.
denied 528 U.S. 1191 (2000).
Riojas contends the district court erred in refusing to reduce
his offense level for acceptance of responsibility. Our review of
a U.S.S.G. § 3E1.1 determination is “even more deferential than a
pure clearly erroneous standard”. United States v. Chapa-Garza, 62
F.3d 118, 122 (5th Cir. 1995). Riojas attempted to minimize his
participation in the offense and downplay his criminal conduct.
See U.S.S.G. § 3E1.1(a); United States v. Wilder, 15 F.3d 1292,
1299 (5th Cir. 1994). There was no error.
AFFIRMED

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