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*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should not be published.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
No. 92-8112
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC ANDREA HENDERSON, Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(W-91-CR-128)
November 23, 1992
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Cedric Andrea Henderson appeals the
sentence imposed following his conviction on a plea of guilty to
distribution of "crack" cocaine in violation of 21 U.S.C.

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§ 841(a)(1). He assigns as error the sentencing court's
consideration of quantities of cocaine not included in the count of
conviction and of the amounts of cocaine distributed on other
occasions, given the government's obligation under the plea
agreement not to prosecute for offenses other than the principal
offense underlying Henderson's conviction. He also questions the
voluntariness of his guilty plea. Finding no reversible error, we
affirm.
I
FACTS AND PROCEEDINGS
Henderson negotiated a $20 sale of "crack" cocaine to a
confidential informant, the latter being accompanied by an
associate of the local narcotics task force who had a van equipped
with a video camera. Henderson took the 0.20 gram "rock" of crack
cocaine from a match box, and sold it to the informant. Henderson
was later identified from a photograph by the associate and the
informant as the person who had sold the cocaine to the informant.
Over a month later, Henderson approached the associate who then
negotiated another $20 sale of crack cocaine, this one weighing
0.15 grams. On this occasion Henderson took the cocaine from a
Tylenol tube. Both transactions were videotaped.
Henderson and two other individuals, including one of his
suppliers--Tutson--were later stopped in their vehicle by a state
trooper for a vehicle registration violation. The driver of the
vehicle was arrested for an unrelated offense, and a search of the
vehicle turned up 30 rocks of crack cocaine. Tutson and Henderson

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were arrested for possession of "crack" cocaine. After he was
identified some three months later, Henderson was arrested for the
two videotaped transactions.
When confronted with the videotape, Henderson admitted that he
delivered the cocaine to the narcotics task force associate. In
his confession, Henderson indicated that he had been selling
"crack" cocaine for two suppliers over a period of nineteen weeks.
He also admitted that he had conducted four other sales of cocaine
to other individuals on the same day as one of the two videotaped
transactions. Pursuant to a plea agreement, Henderson pleaded
guilty to the transaction involving the rock removed from the match
box. In return, the government dismissed the remaining count,
which had arisen from the other transaction.
Details regarding quantities of drugs involved were provided
in Henderson's confession. He described generally how Tutson would
provide him with "one hundred dollars worth at a time in a match
box . . . about ten times a day . . . about twice a week." As one
hundred dollars would purchase about five rocks, Henderson was
delivering one hundred "Tutson" rocks per week, and thus 1900 such
rocks during the period of nineteen weeks in question. Ervin, the
other supplier, would provide Henderson with "five-hundred dollars
worth" of cocaine in a Tylenol bottle, "four . . . times a day,
seven days a week." This was calculated to produce sales of 700
"Ervin" rocks per week, and thus 13,300 rocks over the nineteen
weeks. Based on these admissions, the Presentence Investigation
Report (PSR) concluded that Henderson had delivered a total of

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15,200 rocks over the nineteen-week period during which he admitted
dealing.
For purposes of sentencing, the total weight of those 15,200
rocks was calculated in the PSR to be 2.28 kilos, based on 0.15
grams per rock, the smaller of the weighed rocks delivered to the
informant by Henderson. The 2.28 kilos included the amounts seized
from the vehicle when Henderson was arrested on the highway prior
to being identified. The total amount of drugs directly involved
in the charged offenses was only 0.90 grams, which included the two
videotaped transactions and the four additional sales specifically
admitted by Henderson.
In the PSR, a total offense level of 38 was calculated under
the guidelines based on 2.28 kilograms. The preparer of the PSR
calculated a criminal history category of VI, observing that, as a
result of Henderson's history of five guilty plea convictions for
attempted burglary, robbery, and theft, he was automatically
assigned to category VI as a career offender. Given a statutory
maximum prison term of 20 years, the PSR noted that the guideline
imprisonment range of "360 months to life" should be reduced to a
single range of 240 months. The district court adopted the PSR's
recommendations, sentencing Henderson to prison for 240 months, and
Henderson timely appealed.
II
ANALYSIS
A. Quantities of Drugs for Calculating Sentence
Information relied on by the trial court in sentencing must

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have some indicia of reliability. See U.S.S.G. § 6A1.3(a), p.s.
Thus, a sentence imposed by the trial court will be upheld when the
sentence is determined by a proper application of the guidelines to
findings of fact that are not clearly erroneous. United States v.
Buenrostro, 868 F.2d 135, 136-37 (5th Cir. 1989), cert. denied,
495 U.S. 923 (1990). A finding is not clearly erroneous when it is
plausible in light of the record as a whole. United States v.
Sanders, 942 F.2d 894, 897 (5th Cir. 1991). The sentencing court
may therefore rely on information contained in the PSR which the
court has adopted by reference. See United States v. Vela,
927 F.2d 197, 201 (5th Cir.), cert. denied, 112 S. Ct. 214 (1991).
Furthermore, when no challenge to the underlying facts is raised,
the trial court is free to adopt the facts reported in the PSR
without further inquiry. United States v. Rodriguez, 897 F.2d
1324, 1326-27 (5th Cir.), cert. denied, 111 S. Ct. 158 (1990).
In determining the base offense level, the court may properly
consider as "relevant conduct" "all such acts and omissions that
were part of the same course of conduct or common scheme or plan as
the offense of conviction." § 1B1.3(a)(2). "Types and quantities
of drugs not specified in the count of conviction may be considered
in determining the offense level." See § 2D1.1, comment. (n.12).
"It is not necessary that controlled substances are actually seized
and analyzed in order to determine the appropriate offense level."
See United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991)
(internal quotations and citation omitted). The district court's
determination that a defendant's criminal activities involved

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quantities of drugs exceeding those quantities forming the basis
for conviction will be reversed only if clearly erroneous. United
States v. Kinder, 946 F.2d 362, 366 (5th Cir. 1991), cert. denied,
112 S. Ct. 1677 (1992); United States v. Mejia-Orosco, 867 F.2d
216, 221-22, cert. denied, 492 U.S. 924 (1989).
Such findings need be established only by a preponderance of
the evidence. See United States v. Alfaro, 919 F.2d 962, 965 (5th
Cir. 1990). Nevertheless, Henderson argues that we should review
the district court's determination of fact by requiring proof by
clear and convincing evidence, as this standard would provide
"greater due process protections at sentencing." But, as Henderson
concedes, that is not the law; his argument therefore lacks merit.
As such facts will be used only for sentencing and not for
prosecution, a lesser degree of protection is operative. See
Kinder, 946 F.2d at 366-67.
Henderson contends that the district court erred when it
included amounts of cocaine base delivered during transactions on
dates other than the date of the illegal transaction to which he
pleaded guilty. Henderson grounds his argument, at least in part,
on the fact that he was the principal source of the information.
Henderson argues further that he was merely "puffing" when he
indicated the amounts of drugs that had been supplied to him. This
argument too is without merit. The district court may reject
assertions that information provided by the defendant was merely
"puffery" when the record indicates otherwise. Kinder, 946 F.2d at
366; cf. United States v. Shacklett, 921 F.2d 580, 584 (5th Cir.

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1991) (clear error to adopt unsupported factual findings in PSR).
The government correctly counters that Henderson provided
considerable detail of the amounts supplied by two named sources,
sufficient to trigger operative provisions of the guidelines. The
PSR also contained sufficient details, which were corroborated by
local government agents involved in the ongoing investigation. The
burden is thus placed on Henderson to prove that the information is
"materially untrue, inaccurate or unreliable." Angulo, 927 F.2d at
205. Other than a naked allegation of "puffery," Henderson has not
provided such proof. The district court was therefore free to
reject Henderson's later declarations which were "made for the
purpose of reducing his sentence." Buenrostro, 868 F.2d at 138.
The sentencing court has discretion to estimate the quantity
of drugs handled as conduct relevant to sentencing. § 2D1.4,
comment. (n.2); see § 1B1.3(a)(2). Such discretion is broad.
Angulo, 927 F.2d at 205 (relying on an estimate made by an
officer). When Henderson was arrested in the company of Tutson,
one of his suppliers, officers found approximately 30 rocks of
presumptive cocaine in the suspects' automobile, clearly
establishing the supply connection between Tutson and Henderson,
and further establishing that a substantial amount of cocaine rocks
were involved.
We conclude that the court's factual findings of quantity were
based on information possessed of sufficient indicia of reliability
to support the sentence. The court did not clearly err when it
considered quantities of crack cocaine rocks based on the

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undisputed Tutson connection set forth in the PSR. Similarly, as
Henderson provided ample details to support his connection with his
other supplier, Ervin, the quantitative determination by the
district court based on amounts estimated on the basis of such
details was not clearly erroneous.
B. Prosecution Distinguished from Sentencing
Henderson argues that, as the government promised to prosecute
him only for distributing 0.90 grams of cocaine base, the
government should not be allowed to pursue sentencing that takes
into consideration the other amounts of cocaine base to which
Henderson did not specifically plead guilty. We rejected this
argument in Kinder. 946 F.2d at 366-67 (use of drug quantities to
determine the degree of sentencing is not tantamount to prosecution
on those quantities); but see United States v. Kinder, 112 S. Ct.
2290, 2293 (1992) (White, J., dissenting from denial of
certiorari).
C. Voluntariness of Plea
Henderson also argues that the government misrepresented the
scope of its plea agreement when the additional information was
used for purposes of increasing his sentence, thereby rendering his
plea involuntary. This argument too is without merit. When the
defendant has been informed of the maximum statutory penalty that
could result from the offense and receives no more than the stated
maximum, his guilty plea is not rendered involuntary. Kinder, 946
F.2d at 367. Henderson was informed by the district court that the
maximum statutory penalty that could result from the offense was

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"20 years of incarceration." Possessed of that information,
Henderson nevertheless affirmatively indicated his approval of the
plea agreement and his willingness to plead guilty. We find
nothing legally involuntary in that situation.
III
CONCLUSION
As the sentencing court did not clearly err in its findings of
fact and correctly applied the law to those facts, there was no
reversible error in the calculation of Henderson's term of
imprisonment. Likewise, the court did not err in accepting
Henderson's plea as voluntarily given.
AFFIRMED.

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