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United States v. Pardo, 00-20594 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 00-20594 Visitors: 27
Filed: Apr. 12, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 00-20594 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ORLANDO PARDO, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-15-1 _ April 11, 2001 Before JOLLY, DAVIS, and STEWART, Circuit Judges. PER CURIAM:* Orlando Pardo contends that the district court erred by considering his involvement in a 160-kilogram cocaine transaction as relevant
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                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 00-20594
                            Summary Calendar
                         _____________________

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                versus

ORLANDO PARDO,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Southern District of Texas
                       USDC No. H-00-CR-15-1
_________________________________________________________________
                           April 11, 2001

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

     Orlando Pardo contends that the district court erred by

considering his involvement in a 160-kilogram cocaine transaction

as relevant conduct in determining his offense level.     Pardo had

disclosed the transaction to the government during a debriefing,

which was conducted pursuant to a proffer agreement granting him

use immunity.      Information provided under an agreement of use

immunity may be considered at sentencing but shall not be used in

determining the applicable guideline range unless the information

     *
      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this opinion should not be published and is not precedent except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.
was "known to the government prior to entering into the cooperation

agreement . . . ."          U.S.S.G. ยง 1B1.8(a) & (b)(1).              The district

court found that the information was known to the government prior

to the debriefing.         We review this finding for clear error.            United

States v. Gibson, 
48 F.3d 876
, 878 (5th Cir. 1995).

     The    district       court's    finding    was    based   upon    information

provided by the probation officer in the presentence investigation

report and in response to Pardo's objection to the probation

officer's report.      Although the government had the initial burden

of showing, by a preponderance of the evidence, that it had

developed knowledge of the transaction prior to the debriefing, see

Kastigar v.       United    States,    
406 U.S. 441
,   460-62   (1972),   the

district court had discretion to adopt the probation officer's

findings without more specific inquiry or explanation because Pardo

offered    only    general    unsupported       objections      to   the   probation

officer's report.      United States v. Gray, 
105 F.3d 956
, 969 (5th

Cir. 1997); see 
Gibson, 48 F.3d at 878
; United States v. Angulo,

927 F.2d 202
, 205 (5th Cir. 1991).                     Unlike United States v.

Shacklett, 
921 F.2d 580
(5th Cir. 1991), cited by Pardo, evidence

was presented at Pardo's detention hearing, held prior to Pardo's

debriefing, showing that the government knew of Pardo's involvement

in the transaction.




                                         2
     Pardo    complains   for    the   first      time    on    appeal   that     the

Government    breached    its   promise      to   disclose       the   results    of

scientific tests and examinations by failing to disclose the

qualifications and training of individuals who had compared a

recorded conversation regarding the 160-kilogram transaction with

an exemplar of Pardo's voice.              We review this issue for plain

error.   See United States v. Calverley, 
37 F.3d 160
, 162-64 (5th

Cir. 1994) (en banc).       Pardo has not shown any error, plain or

otherwise,    with   respect    to   the    failure      of    the   government    to

disclose information regarding the monitors' qualifications.                      The

judgment is

                                                                 A F F I R M E D.




                                       3

Source:  CourtListener

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