Case: 18-10958      Document: 00514938284         Page: 1    Date Filed: 05/01/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                    No. 18-10958
                                                                                 FILED
                                                                              May 1, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FREDERICK ALLEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:17-CR-63-2


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Frederick Allen was convicted by a jury of
conspiracy, distribution, and possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841 and 21 U.S.C. § 846. He was sentenced to 188
months of imprisonment, to be served concurrently, and three years of
supervised release. Allen contends on appeal that the district court erred in
imposing the obstruction of justice enhancement under U.S.S.G. § 3C1.1 for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-10958     Document: 00514938284      Page: 2    Date Filed: 05/01/2019


                                  No. 18-10958

his alleged perjury because the probation officer did not flag this as an issue in
the first Presentence Report (PSR). He argues that the district court’s adoption
of the PSR addendum was not sufficient to fulfill its obligation to make specific
findings required for an obstruction of justice enhancement based on perjury.
      A district court’s determination that a defendant has obstructed justice
is a factual finding which we review for clear error. See United States v.
Juarez-Duarte, 

, 208 (5th Cir. 2008). Allen did not object to the
specificity of the district court’s findings on perjury, so we review this issue for
plain error. United States v. Mondragon–Santiago, 

, 361 (5th Cir.
2009).
      Allen’s PSR addendum, based on the facts as set forth by the
Government in its objections, recommended the § 3C1.1 enhancement on the
basis of a finding that Allen committed perjury at trial. Allen did not file a
response to the Government’s objections; in fact, he did not file any objections
to the PSR addendum and did not present any rebuttal evidence at the
sentencing hearing. The district court adopted the findings set forth in the
PSR addendum and the Government’s position on Allen’s false statements.
Allen still made no objection.
      In the absence of rebuttal evidence, the district court properly adopted
the PSR addendum when it applied the obstruction enhancement. See United
States v. Kuhrt, 

, 424 (5th Cir. 2015). Adoption of the PSR and
the addendum satisfies the requirement that the court make independent
findings regarding a § 3C1.1 enhancement. See United States v. Perez-Solis,

, 469-70 (5th Cir. 2013). Allen has not shown that the district
court’s finding that he obstructed justice by committing perjury constituted
plain error. See 

.




                                         2
    Case: 18-10958    Document: 00514938284     Page: 3   Date Filed: 05/01/2019


                                 No. 18-10958

      Allen also asserts argues that the district court erred in assigning a
leader/organizer role to him under U.S.S.G. § 3B1.1(c). He contends that, at
most, he was an intermediate supplier of narcotics. Allen was an organizer of
at least two people in the drug distribution conspiracy, based on (1) the
testimony of Jesse James Scott that Allen recruited him to help distribute
cocaine in West Texas, and (2) the testimony of Guy Jackson that Allen called
him to see if he wanted to buy cocaine. The probation officer also noted that
Allen was essential in organizing the October 22, 2017 drug transaction, given
his actions in making or receiving 43 calls to or from Scott and other known
drug dealers. The probation officer added that Allen helped organize the drug
deal by driving around the neighborhood to make sure law enforcement had
stopped doing surveillance. After obtaining the drugs from his supplier, Allen
delivered them to Scott and accompanied Scott to meet the undercover agent.
These activities support a finding that Allen acted as a leader or organizer in
the conspiracy. See United States v. Cooper, 

, 246-47 (5th Cir.
2001). Allen’s characterization of his role as an intermediate supplier does not
prevent him from also being a leader or organizer. 

does not give rise to a definite and firm conviction that the
district court made a mistake in applying the § 3B1.1(c) enhancement,” so the
district court did not clearly err in imposing the two-level enhancement.
United States v. Zuniga, 

, 592 (5th Cir. 2013).
      AFFIRMED.




                                       3