1Local 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should not be published.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. 92-1547
Summary Calendar
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
IVA GAY REYNOLDS,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(CR3 91 355 G)
______________________________________________________
March 26, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:1
Iva Gay Reynolds appeals her sentence following her plea of
guilty to a single drug trafficking count. We find no error and
affirm.
I.
Ivy Gay Reynolds pleaded guilty to a superseding information
charging her with a single count of possession of marijuana with
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intent to distribute in violation of 841 U.S.C. §§ 841(a)(1) and
(b)(1)(B). The probation officer determined that Reynolds's base
offense level was 34 with a criminal history category of I. The
probation officer recommended, and the judge accepted, a three-
level enhancement for Reynolds's role as manager/supervisor in the
offense and a two-level reduction for acceptance of responsibility.
These adjustments brought Reynolds's total offense level to 35,
resulting in a guideline range of 168-210 months. The district
court departed downward and sentenced Reynolds to 144 months of
imprisonment followed by a term of supervised release for five
years. Reynolds raises a number of objections which we consider
below.
II.
A.
Reynolds argues first that she was never provided with the
addendum to the PSR. Therefore, she was unable to be heard on her
objections to the presentence report (PSR) as provided by Fed. R.
Crim. P. 32.
The addendum to the PSR raised no new issues. The probation
officer in the addendum accepted Reynolds's explanation as to one
objection and rejected her objection to the upward adjustment for
her role as manager or supervisor essentially based on evidence
already in the PSR. Yet, Reynolds never brought the failure to
provide her with the addendum to the court's attention, nor did she
object to the district court's use of the addendum to resolve her
objections to the PSR.
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Reynolds still could have made any arguments in opposition to
the PSR's proposed solution to her objections because she had made
those objections and knew the court would ultimately rule on them.
However, she did not do so. Therefore, Reynolds was not prejudiced
by not seeing the addendum before the sentencing hearing. Because
Reynolds has not shown an obvious error or mistake, this argument
is without merit.
B.
Reynolds argues next that the district court erroneously
classified her as a manager or supervisor, which resulted in a
three-level increase in her base offense level.
The district court's sentence must be upheld so long as it
results from a correct application of the guidelines to factual
findings which are not clearly erroneous. United States v. Alfaro,
919 F.2d 962, 964 (5th Cir. 1990), cert. denied, 112 S.Ct. 943
(1992). If the district court's findings of fact are plausible,
based on a review of the entire record, they may not be reversed.
Id. at 966. The district court may properly consider any relevant
evidence so long as it carries with it sufficient indicia of
reliability to support its probable accuracy. Id. at 964. "[A]
presentence report generally bears sufficient indicia of
reliability to be considered as evidence by the trial judge in
making the factual determinations required by the sentencing
guidelines." Id. at 966.
Guideline section 3B1.1(b) requires a three-level increase
in the offense level "[i]f the defendant was a manager or
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2 See United States v. Rodriguez, 897 F.2d 1324, 1325-26 (5th
Cir.), cert. denied, 111 S.Ct. 158 (1990) for a discussion of the
factors to be considered in deciding whether a defendant was a
manager or organizer. See also § 3B1.1, comment. (n.3).
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supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive." U.S.S.G. § 3B1.1(b). A finding that a defendant is a
manager or supervisor under § 3B1.1(b) is reviewed under the
"clearly erroneous" standard. United States v. Liu, 960 F.2d. 449,
456 (5th Cir.), cert. denied, 113 S.Ct. 418 (1992).2
Reynolds argues that the nature of her participation in the
organization did not rise to the level of manager or supervisor.
She admits that she functioned as a driver and passenger during the
transport of drug shipments. However, she disagrees that she was
a principal driver or that her activities made her a manager or
supervisor. Additionally, she argues, without citing authority,
that if she did oversee the organization's finances, such activity
is not a supervisory role. Finally she contends that she was
erroneously classified as a manager or supervisor because she was
the wife of the leader, and such fact does not automatically make
her a manager or supervisor.
The conspirators of this organization made at least 42 trips
to deliver marijuana from Texas to Ohio. On at least 11 occasions,
Reynolds either drove or accompanied members on trips to deliver
marijuana to customers. Although Reynolds's husband was the leader
of the organization, during his absence she exercised control and
authority over the other participants by supervising them.
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Reynolds also kept track of the finances for the purchase and sale
of the marijuana and helped exchange the drug profits for gold
coins to keep the money from being traced. Additionally, Reynolds
signed a factual resume admitting that she participated as a
principal driver.
Considering the above evidence, the district court did not
clearly err in adjusting Reynolds's sentence upward three levels
for her participation in a managerial or supervisory role.
C.
Reynolds argues next that the district court disparately
sentenced her as compared to the sentences received by her co-
defendants. She contends that several of her codefendants pleaded
to the same charge and had similar criminal histories, yet received
substantially lighter sentences. Reynolds offers unsupported
allegations that the sentence disparity resulted from the
Government's desire for revenge after Reynolds's husband would not
cooperate with authorities. She also contends that the
complicated nature of the Sentencing Guidelines allows the
Probation Department and the U.S. Attorney to manipulate the system
to achieve the sentences they desire the individual defendants to
have.
However, Reynolds did not raise this issue in the district
court. Sentences attacked on grounds raised for the first time on
appeal are not allowed in any but the most exceptional cases.
United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990).
This is not such a case. In any event the argument is meritless.
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A defendant cannot rely upon her codefendants' sentences as a yard-
stick for her own. United States v. Boyd, 885 F.2d 246, 249 (5th
Cir. 1989). Therefore, Reynolds's disparate sentence argument
fails.
D.
Reynolds argues finally that the district court erred in
denying her motion to supplement the record on appeal. She
contends that to prove that her sentence was arbitrarily set, she
should have been allowed to supplement the record on appeal with
conviction and sentencing information of her codefendants.
Because Reynolds's "disparate" treatment issue was not properly
preserved in the district court, such information cannot change the
result of her appeal. Therefore, this argument is also without
merit.
AFFIRMED.
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