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1 Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 92-2254
Summary Calendar
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARK MARTIN YUNCEVICH, JR.,
Defendant-Appellant.
and
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No. 92-2257
Summary Calendar
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LYDIA KAY PORTER,
Defendant-Appellant.
______________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
(CR H 91 0080 01 & CR H 91 80 3)
______________________________________________________
August 31, 1993
Before DAVIS, JONES, and DUHÉ, Circuit Judges.
PER CURIAM.1

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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should not be published.
2
Appellants Yuncevich and Porter were named with others in a
multi-count indictment. Pursuant to an agreement, Yuncevich and
Porter pleaded guilty to aiding and abetting possession of heroin
with intent to distribute, and Yuncevich also pleaded guilty to
aiding and abetting the use of a telephone to facilitate a
conspiracy to possess heroin with intent to distribute. They
appeal their sentences. We affirm.
We review application of the sentencing guidelines de novo and
the findings of fact made in sentencing for clear error. United
States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989); United States
v. Mourning, 914 F.2d 699, 704 (5th Cir. 1990).
Yuncevich and Porter complain that the district court erred in
calculating their base offense levels because he overestimated the
scope of the conspiracy and hence the amount of heroin involved.
We disagree.
A base offense level can reflect quantities of drugs in
addition to those in the count of conviction if they are part of
the same course of conduct or common scheme as the count of
conviction, and if supported by a preponderance of the evidence.
United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990); United
States v. Thomas, 932 F.2d 1085, 1091 (5th Cir.), cert. denied, 112
S. Ct. 264 (1991). The district court held an extensive hearing

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concerning the breadth of the conspiracy and the amount of drugs,
and then reviewed the presentence report in detail with the
probation officers. Thereafter, he concluded that the drug amounts
specified in the presentence report were reasonably accurate, and
he adopted the factual findings of the report. After carefully
reviewing the presentence report, the evidence, and the arguments
we are firmly convinced that the district court did not err.
Porter's argument that the district court could not rely on
the presentence report to determine the quantity of drugs
foreseeable by her is likewise without merit. See United States v.
Sherbak, 950 F.2d 1095, 1100 (5th Cir. 1992). The report fully
documents her involvement. Moreover, the district court used a one
to three kilo amount to calculate her level under § 2D1.1(c)(6),
which resulted in a lower level because of Porter's relatively
recent involvement in the conspiracy.
Yuncevich next claims that becasue the district court did not
find as a fact that Yuncevich had control over four other persons
in the activity it erred in enhancing his base offense level four
points under § 3B1.1(a) for a leadership roll in an extensive
criminal activity. The district court may consider all persons
firmly involved in the underlying transaction. Mir, 919 F.2d at
943. The district court adopted the findings of the presentence
report, which details an extensive heroin distribution network
involving more than five persons and clearly reflects that
Yuncevich was its leader.
Porter contends that the facts in the presentence report

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support her claim that her offense level should have been reduced
two to four points because she was a minor or minimal participant
in the scheme. The report shows, however, that although she was
not involved for as long a period of time as some, she allowed
Yuncevich to use her, her name and her apartment for his illegal
activities, she carried the heroin in the instant offense, and she
furnished some of the money used to purchase the drugs. This fully
supports the district court's finding.
Porter also argues that it was error to enhance her base
offense level under § 2D1.1(b) for possession of a firearm during
a drug offense. She admits that the weapon was hers and was in the
apartment she shared with Yuncevich in which drug trafficking
occurred. She contends, however, that the gun was in no way
involved in the drug offense. Her argument is foreclosed by United
States v. Hewin, 877 F.2d 3, 5 (5th Cir. 1989).
The district court declined to reduce Yuncevich's base offense
level for acceptance of responsibility. We review under a standard
even more deferential than clearly erroneous. United States v.
Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied, 113 S. Ct. 348
(1992). A defendant who is found to have played a leadership role
does not fully accept responsibility under § 3E1.1 if he attempts
to minimize his leadership role. Id. at 59. That is exactly what
Yuncevich has done. At his sentencing hearing, he testified that
he headed no organization and that there were no multi-kilo drug
deals. The district court's findings were to the contrary and are
fully supported. Simply admitting to the crime is not an adequate

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acceptance of responsibility for a leader.
Finally, Yuncevich and Porter contend that once they objected
to portions of the presentence report, it was incumbent upon the
Government to come forward with additional evidence in support of
its contentions. Additionally, they argue that the district court
improperly allowed the probation officer to satisfy the
Government's burden of proof and to perform the sentencing court's
role as fact-finder. Appellants misapprehend the law. "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." Sherbak, 950 F.2d at 1100. By adopting the
presentence report, the district court implicitly weighed the
positions of the parties and credited the probation department's
determination of the facts. United States v. Ramirez, 963 F.2d
693, 706 (5th Cir.), cert. denied, 113 S. Ct. 388 (1992). Based
upon these considerations, the district court's findings of fact
were not clearly erroneous.
AFFIRMED.

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