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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 94-40731

UNITED STATES of AMERICA,
Plaintiff-Appellee,
versus
GILBERT AYALA
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Texas

(February 27, 1995)
Before KING, GARWOOD, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
At the sentencing hearing, Appellant Gilbert Ayala did not
specifically
challenge
any
fact
within
his
presentence
investigation report (PSR) or offer any evidence. Ayala merely
argued that there was no factual support for a four-level
adjustment in his offense level for being a leader or organizer,
and that he should receive a reduction for acceptance of
responsibility. Finding some support in the PSR (which had been
adopted by the sentencing court) for the leadership adjustment, and
concluding that Ayala has not shown that this is an "extraordinary
case" where adjustments for both obstruction of justice and
acceptance of responsibility should coexist, we affirm.

I. FACTS AND PROCEDURAL HISTORY
In 1992, Ayala was indicted with four codefendants and charged
with conspiracy to possess with intent to distribute 100 kilograms
or more of marijuana, and the substantive offense of possession
with intent to distribute the marijuana. Ayala failed to appear
for a pretrial hearing in Texas, and he remained a fugitive until
his arrest in 1993 in Memphis, Tennessee, for a state charge of
possession of marijuana. After he was returned to Texas, Ayala
pleaded guilty to the 1992 federal marijuana charge.
The PSR recommended a two-level increase for obstruction of
justice due to Ayala's abscondence from pretrial supervision. The
PSR also recommended a four-level increase pursuant to U.S.S.G.
§3B1.1(a) because Ayala was an organizer/leader of criminal
activity involving five or more participants. Additionally, the
PSR concluded that because of his abscondence, Ayala had not
demonstrated acceptance of responsibility.
In his written objections to the PSR, Ayala had challenged the
denial of a reduction for acceptance of responsibility. In the
context of arguing that he was entitled to a three-level reduction
for acceptance of responsibility, Ayala contended that "[i]f [he]
had not truthfully revealed to the government his involvement in
this case, the government would not have been able to assess him
the points for his leadership role." At the sentencing hearing,
however, Ayala also challenged his four-level increase for being a
leader or organizer, asserting that there was no evidence to
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support such a finding. Ayala did not specifically challenge any
factual statement in the PSR. Ayala failed to produce any
testimony or other evidence in support of his objections except the
written plea agreement.
The government, having been first made aware of the leadership
objection at the sentencing hearing, also failed to produce any
evidence. The government asserted that ample testimony from
codefendant Galindo at another trial, as well as the various
reports submitted to the probation office, supported the PSR's
conclusion regarding leadership/organizer increase. The sentencing
court overruled Ayala's objections and adopted the PSR.
II. ORGANIZER/LEADER INCREASE
Ayala contends that the district court erred in enhancing his
base offense level by four levels for being a leader/organizer. He
asserts that there was insufficient evidence to support such a
finding. He does not contest that five or more participants were
involved in the instant crime. Further, he offers no evidence in
support of his position save for naked assertions that he was not
an organizer or leader, asserting that "at best, [] the government
has shown that he was a manager or supervisor" only.
This Court will disturb a district court's factual finding
that a defendant was a leader/organizer pursuant to §3B1.1 only if
it is clearly erroneous. United States v. Barreto, 871 F.2d 511,
512 (5th Cir. 1989). Factual findings are not clearly erroneous if
they are plausible in light of the record read as a whole. United
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States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir. 1992). However,
there must be an acceptable evidentiary basis for the court's
factfindings at the sentencing hearing. United States v.
Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir.), cert. denied, 498
U.S. 857, 111 S.Ct. 158 (1990). As the party seeking an adjustment
in the sentence level, the government had the burden of proving by
a preponderance of the evidence the facts necessary to support the
adjustment. See United States v. Elwood, 999 F.2d 814, 817 (5th
Cir. 1993); United States v. Patterson, 962 F.2d 409, 415 (5th Cir.
1992).
Generally, a PSR bears sufficient indicia of reliability to
permit the sentencing court to rely on it at sentencing. See
United States v. Gracia, 983 F.2d 625, 629 (5th Cir. 1993). The
defendant bears the burden of demonstrating that the PSR is
inaccurate; in the absence of rebuttal evidence, the sentencing
court may properly rely on the PSR and adopt it. Id. at 630. The
court is free to disregard a defendant's unsworn assertions that
the PSR is unreliable. Id. at 630 & nn. 21, 22; United States v.
Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992) (objections in the
form of unsworn assertions do not bear sufficient indicia of
reliability to be considered).
A close examination of Ayala's PSR shows that there were
sufficient factual findings to support the leadership adjustment.
The PSR provided that a confidential informant had advised the
Federal Bureau of Investigation that a large marijuana shipment
would be sent from the Brownsville-Harlingen area of Texas to an
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area in north Texas within a hidden compartment in a dark gray
Peterbilt tractor-trailer with "AC Trucking" on both doors. On
June 5, 1992, law-enforcement officers followed the above-described
tractor-trailer to "Ayala's property" near Canton, Texas. There,
future codefendants Richard Gonzalez, Robert Gonzalez and Victor
Garza, both of whom the PSR states were working "for Ayala,"
unloaded the marijuana from the tractor-trailer into a mobile home.
Ayala and Jose Galindo then left in the tractor-trailer and were
apprehended. At the same time, officers detained Richard Gonzalez,
Robert Gonzalez, and Victor Garza at the mobile home. Officers
recovered 32 bundles on Ayala's property containing 643 pounds (291
kilograms) of marijuana.
A defendant's role in the criminal activity for the purpose of
applying guideline section 3B1.1 may be deduced inferentially from
available facts. See e.g. United States v. Manthei, 913 F.2d 1130,
1135 (5th Cir. 1990). Factors to consider include the exercise of
decision making authority, the nature of participation in the
commission of the offense, and the degree of control and authority
exercised over others. U.S.S.G. §3B1.1 comment. (n.4). Here, the
facts in the PSR providing that a substantial quantity of marijuana
was transported to and stored upon Ayala's property, with Ayala
present, and that the three unloaders, Richard Gonzalez, Robert
Gonzalez, and Victor Garza, were working "for Ayala," supported the
reasonable inference that Ayala was the leader and the resulting
leadership increase. Accordingly, the district court did not
-5-

clearly err in assessing the four-level increase in Ayala's offense
level for his leadership role.
II. ACCEPTANCE OF RESPONSIBILITY
Ayala next contends that he should have received a three-level
reduction to his base offense level for acceptance of
responsibility. Ayala bears the burden of demonstrating the
recognition and affirmative acceptance of personal responsibility.
United States v. Mourning, 914 F.2d 699, 705-06 (5th Cir. 1990);
§3E1.1(a). The crux of his argument is that he pleaded guilty
promptly after being arrested on a fugitive warrant and that his
plea agreement contained a recommendation for an acceptance-of-
responsibility reduction by the government. He does not object to
the two-level increase for obstruction of justice due to his
abscondence, but asserts that activity does not preclude a finding
of acceptance of responsibility. His argument is unavailing.
We have opined that subsequent cooperation with law
enforcement officers after flight from custody (constituting
obstruction of justice) did not warrant a finding of acceptance of
responsibility. United States v. Ainsworth, 932 F.2d 358, 363 n.3
(5th Cir.), cert. denied, 502 U.S. 918, 112 S.Ct. 327 (1991).
Ayala admits that, while on pretrial supervision, he
absconded, was a fugitive for approximately 15 months, and (while
a fugitive) was arrested on a state charge for possession with
intent to distribute marijuana, the same charge he was convicted of
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in the instant matter. Ayala has not shown that this is one of
those "extraordinary cases" in which adjustments for both
obstructions of justice under U.S.S.G. §3C1.1 and acceptance of
responsibility under U.S.S.G. §3E1.1 would be appropriate. See
United States v. Rodriguez, 942 F.2d 899, 903 (5th Cir. 1991),
cert. denied, 502 U.S. 1080, 112 S.Ct. 990 (1992); Ainsworth, 932
F.2d at 363 n.3.

CONCLUSION
For the above stated reasons, Ayala's sentence is AFFIRMED.
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