Case: 11-20778      Document: 00512281647         Page: 1     Date Filed: 06/20/2013




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

                                                                           FILED
                                                                          June 20, 2013
                                      No. 11-20778
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,
v.

EDMUNDO ZUNIGA, also known as Mundo,


                                                 Defendant–Appellant.



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


Before ELROD and HIGGINSON, Circuit Judges, and JACKSON, District
Judge.*
PER CURIAM:
      Edmundo Zuniga (“Zuniga”) appeals his sentence of 171 months of
imprisonment, challenging enhancements for having a management role in his
offense and for causing bodily injury. We find no error in the management
enhancement, but we VACATE the bodily-injury enhancement, and REMAND
for resentencing.




      *
       Chief Judge of the Middle District of Louisiana, sitting by designation.
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                                   No. 11-20778

                                         I.
       Zuniga pleaded guilty to: (1) interference with commerce by means of
robbery, in violation of 18 U.S.C. § 1951(a) (Count One); (2) conspiracy to use
and carry a firearm during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(o) (Count Two); and (3) aiding and abetting the use and carrying
of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.
§§ 2 and 924(c)(1)(A)(ii) (Count Three).
       The Presentence Report (PSR) included facts gathered from interviews of
confidential informants, co-conspirators, and witnesses. According to the PSR,
a confidential informant told law enforcement that Jose Juarez—a disgruntled
drug-dealer—had organized a crew to steal approximately $700,000 and two
kilograms of cocaine from a home. The crew included Zuniga and three other
men.
       Later that day, a police officer who was observing the home saw Zuniga
and three co-conspirators arrive in a gold Oldsmobile. While the driver waited
in the car, Zuniga and the other two men forced their way into the home with
handguns. Six minors were inside the residence when the robbery occurred.
Several of the minors told law enforcement that the robbers entered the house
screaming, “[P]olice, where is the money!” The next day, one of the minors told
the police that he saw the crew rush to the back door of the home after learning
that the police were outside. The minor stated that he saw “one man trample [ ]
over a 15-year-old girl causing her pain in her arm.” He also saw “one man point
a gun several times, at [an] 8-year-old.”
       According to the PSR, a co-conspirator (“Delgado”) told officials during an
interview that Zuniga had recruited him to commit the robbery. Delgado also
stated that Zuniga appeared to be in charge of the crew during the robbery
because Zuniga would receive calls from an unknown person and then give
orders to the other crew members. The PSR also included statements from
another co-conspirator (“Alvarez”)—who was Zuniga’s cousin—about Zuniga’s

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managament role in the robbery of the home. According to Alvarez, Zuniga
called him to ask if he wanted to make money. Delgado and Zuniga then picked
up Alvarez in the car that they took to rob the home. Inside the car, Alvarez told
Zuniga that it was his first time to commit a robbery, and Zuniga then provided
the handgun that Alvarez used during the robbery. The PSR also stated that
Alvarez was upset at Zuniga for pointing a gun at a child during the robbery.
      The PSR recommended a two-level enhancement pursuant to U.S.
Sentencing Guidelines Manual [hereinafter “U.S.S.G.”] § 3B1.1(c) because of
Zuniga’s aggravating role as a manager of the crew that committed the robbery.
It also recommended a two-level enhancement pursuant to § 2B3.1(b)(3)(A)
because the 15-year-old girl sustained bodily injury when one of the robbers
trampled over her in an attempt to escape the home during the offense.
      Zuniga objected to the application of the § 3B1.1(c) enhancement for his
management role in the robbery. Zuniga argued that he did not recruit others
to commit the robbery, and that he was an average participant who was told
what to do by others. At the sentencing hearing, the government agreed with
defense counsel that the district court should consider Zuniga an average
participant.   Nevertheless, the district court overruled Zuniga’s objection,
stressing that the co-conspirators’ statements about Zuniga’s management role
in the robbery were consistent with one another.
      Zuniga also objected to the § 2B3.1(b)(3)(A) enhancement for causing
bodily injury. He argued that the PSR did not establish that the 15-year-old
victim suffered bodily injury, that there was no evidence that the victim sought
medical attention, and that the injury was neither painful nor obvious. The
district court also overruled this objection, finding that the victim suffered a
bodily injury that was painful and obvious.
      After adopting the PSR, the district court calculated Zuniga’s Guidelines
range of seventy to eighty-seven months for Counts One and Two, and concluded
that Count Three carried a mandatory minimum term of imprisonment of seven

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years (eighty-four months) pursuant to § 924(c)(1)(A)(ii).1 The district court
determined that a sentence at the high end of the Guidelines range was
appropriate based on the extent of Zuniga’s involvement in the robbery and the
violent nature of his instant and prior offenses.                   It sentenced Zuniga to
concurrent terms of eighty-seven months on Counts One and Two, followed by
a consecutive term of eighty-four months on Count Three, for a total sentence of
171 months. Zuniga timely appealed.
                                                II.
       We review the district court’s interpretation and application of the
Guidelines de novo, and its factual findings for clear error. United States v.
Rodriguez, 

, 380 (5th Cir. 2011). A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole. 

clear error only if a review of the record results in a “definite and firm conviction
that a mistake has been committed.” 

and citation
omitted).
                                                A.
       Zuniga claims that the government failed to show by a preponderance of
the evidence that he had a management role in the robbery, which is necessary
to support the § 3B1.1(c) enhancement.2 In support of his position, Zuniga relies
on the government’s agreement at sentencing that he was an average participant
in the robbery.          Zuniga further argues that in applying the § 3B1.1(c)
enhancement, the district court “relied on third and fourth hand summary
statements repeated in the PSR without corroboration.”                       The government
counters that in the absence of rebuttal evidence, the district court was free to
adopt the findings of the PSR. It further argues that facts in the PSR regarding



       1
           Zuniga had a total offense level of twenty-five and a criminal history category of III.
       2
        Guideline § 3B1.1(c) provides for a two-level enhancement “[i]f the defendant was an
organizer, leader, manager or supervisor” of criminal activity. U.S.S.G. § 3B1.1(c).

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Zuniga’s management role bore sufficient indicia of reliability because they were
based on consistent and detailed statements of two co-conspirators about the
robbery.
      When making factual findings for sentencing purposes, a district court
“may consider any information which bears sufficient indicia of reliability to
support its probable accuracy.” United States v. Harris, 

, 230 (5th
Cir. 2012) (internal quotation marks and citation omitted). “Generally, a PSR
bears sufficient indicia of reliability to be considered as evidence by the
sentencing judge in making factual determinations.” 

and citation omitted). However, “[b]ald, conclusionary statements” in a
PSR are not sufficiently reliable. See 

(quoting United States v.
Elwood, 

, 817–18 (5th Cir. 1993)). “If the factual recitation [in the
PSR] lacks sufficient indicia of reliability, then it is error for the district court
to consider it at sentencing—regardless of whether the defendant objects or
offers rebuttal evidence.” See 

if the factual recitation in the PSR
bears sufficient indicia of reliability, then 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.” United States
v. Ollison, 

, 164 (5th Cir. 2009) (citation and internal quotation
marks omitted); see also United States v. Ayala, 

, 690 (5th Cir. 1995)
(confirming that “in the absence of rebuttal evidence, the sentencing court may
properly rely on the PSR and adopt it”). Rebuttal evidence must consist of more
than a defendant’s objection; it requires a demonstration that the information
is “materially untrue, inaccurate or unreliable.” 

.
      Although this case involves an unusual circumstance in that the
government agreed with Zuniga’s objection to the role enhancement, Zuniga cites
no authority to support his argument that it was error, simply because the
government agreed with his objection, for the district court to impose the
§ 3B1.1(c) enhancement. Zuniga objected to the accuracy of the facts in the PSR

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involving his management role in the robbery, but he did not introduce any
rebuttal evidence to show that those facts were “materially untrue, inaccurate
or unreliable.” 

explicitly reasoned that the co-conspirators’
detailed accounts in the PSR of the offense and Zuniga’s management role were
reliable because they were consistent with one another. Specifically, the district
court stated at Zuniga’s sentencing hearing: “So, we’ve got two people saying
that . . . Zuniga was the leader of the crew.”
      In his brief, Zuniga asserts in passing that facts in the PSR of his
management role were unreliable simply because they were based on statements
of his co-conspirators. We have previously rejected this argument. See United
States v. Cantu–Ramirez, 

, 629 (5th Cir. 2012) (affirming that a co-
conspirator’s testimony that supported a PSR calculation was not categorically
unreliable for sentencing purposes). Zuniga’s reliance on United States v.
Ceballos–Amaya also cuts against his position on this issue. 470 F. App’x 254
(5th Cir. 2012) (unpublished). In Ceballos–Amaya, the PSR stated that a drug
runner affirmed that the defendant had assisted in recruiting him to transport
drugs. 

upheld the district court’s application of the § 3B1.1(c)
enhancement. 

reasoned that the district court was permitted to
rely on facts in the PSR of the defendant’s leadership role when, as here, the
defendant offered no evidence at the sentencing hearing to rebut those facts. 

the opinion concurring in part and dissenting in part, which
concluded that the runner’s “mere affirmative response to the conclusionary
allegation” that the defendant recruited him to transport drugs lacked sufficient
indicia of reliability. 

J., concurring in part and dissenting in
part). Zuniga’s case, however, is distinguishable from this interpretation of the
facts in Judge Graves’s opinion because Zuniga’s PSR includes more than a
single affirmation of his management role. Rather, his PSR includes detailed
and consistent information from two co-conspirators about Zuniga’s management
role and the offense itself.

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      United States v. Patterson, which Zuniga cites, is also inapposite. 

(5th Cir. 1992). In Patterson, we concluded that it was error for the district
court to apply the § 3B1.1(c) enhancement when the sole basis for the
enhancement was an unsworn assertion by an Assistant United States Attorney.

the situation in Patterson, Zuniga’s PSR provides details
of Zuniga’s offense from interviews of confidential informants, co-conspirators,
and witnesses.       Although additional sources did not corroborate the
co-conspirators’ particular statements about Zuniga’s management role,
independent facts in the PSR corroborated another specific detail of the co-
conspirators’ descriptions of the offense.    Specifically, a minor’s statement
corroborated Alvarez’s account that Zuniga pointed a gun at a child inside of the
home during the robbery. Although Zuniga objected to the accuracy of the
minor’s statement, it corroborated Alvarez’s account of the offense. Therefore,
facts of Zuniga’s management role derived from Alvarez’s statement as described
in the PSR bore sufficient indicia of reliability to support the district court’s
finding. See United States v. Chavez, 

, 746–47 (5th Cir. 1991)
(holding that a co-conspirator’s statements in a PSR alleging that the defendant
recruited him into a trafficking scheme had sufficient indicia of reliability for
sentencing purposes under § 3B1.1 when additional sources corroborated other
statements of the co-conspirator about the defendant’s conduct that did not
involve recruitment); see also United States v. Rogers, 

, 344 (5th Cir.
1993) (upholding the district court’s reliance on quantity-of-drug information
provided by confidential informants where there was no corroboration of the
amounts attributed to the defendant, but the government’s investigation
corroborated many other details of the drug scheme).
      For these reasons, our review of the record does not give rise to a definite
and firm conviction that the district court made a mistake in applying the
§ 3B1.1(c) enhancement. Accordingly, the district court’s factual finding that



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Zuniga had a management role in the robbery was not clearly erroneous.

.
                                         B.
      Zuniga challenges the district court’s application of the bodily-injury
enhancement pursuant to § 2B3.1(b)(3)(A). Zuniga concedes that one of the
robbers stepped on a victim in an attempt to escape the home. He disputes,
however, that there was sufficient evidence of the victim’s injury to support the
enhancement. We agree.
      Guideline § 2B3.1(b)(3)(A) provides for a two-level enhancement if a
defendant causes “bodily injury” to a victim. U.S.S.G. § 2B3.1(b)(3)(A). The
commentary defines bodily injury as “any significant injury; e.g., an injury that
is painful and obvious, or is of a type for which medical attention ordinarily
would be sought.” 

n.1(B). In evaluating the district court’s
application of the bodily-injury enhancement, “the focus of the inquiry is not on
the actions of the defendant, but rather on the injury sustained” by the victim.
United States v. Guerrero, 

, 946 (5th Cir. 1999) (citation omitted).
The injury need not be the “type for which medical attention ordinarily would be
sought” so long as the injury is “painful and obvious.” 

U.S.S.G. § 1B1.1 cmt. n.1(B)).
      Zuniga’s case is similar to Guerrero, in which we held that it was error for
the district court to apply the bodily-injury enhancement. 

Guerrero, the only evidence in support of the enhancement were statements in
the PSR that the victim was “pistol whipped” and “struck on his back.” 

the evidence was insufficient to support the enhancement, we
stressed that “[v]ery little was said about the degree of the injury cited to justify
the enhancement recommendation.” 

that there was
“[n]o evidence of any injury” and rejected the conclusion that “evidence regarding
the severity of the attack is always sufficient to support” the bodily-injury
enhancement. 

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        Similarly, evidence of the victim’s sustained injury in Zuniga’s case is
sparse. The only evidence supporting the enhancement is a conclusionary
statement that a minor saw “one man trample[ ] over a 15-year-old victim
causing her pain in her arm.” In response to Zuniga’s written objection to the
enhancement, the addendum to the PSR merely reiterated that “[t]he eyewitness
who was inside of the house gave specific details on how the juvenile victim was
trampled as the defendants exited the home, and how she was in pain.” As in
Guerrero, there is no evidence that the victim sustained any significant injury
from being trampled over or what the injury even was. Moreover, the evidence
provided no specificity regarding how the witness knew the child’s arm was in
pain.
        The government argues that the district court was entitled to adopt the
findings of the PSR without further inquiry because Zuniga did not offer rebuttal
evidence. In support of its position, the government relies on United States v.
Jefferson, in which we upheld the district court’s application of the bodily-injury
enhancement. 

, 413–14 (5th Cir. 2001). Unlike the PSR in Zuniga’s
case, however, the PSR in Jefferson included a detailed description of the
victim’s sustained injuries. 

PSR stated that the defendant
struck the victim on the back of the head, and that the victim “received an injury
to her head . . . described as a ‘knot’, in addition to cuts, scrapes, and bruises.”

this detailed description and the defendant’s failure to provide
rebuttal evidence, we concluded that the district court was entitled to adopt the
factual findings of bodily injury in the PSR.3 

is also distinguishable from two recent unpublished, non-precedential cases
in which we upheld the bodily-injury enhancement. Unlike the record in the instant case,
which involves a bald, conclusionary statement in the PSR, the record in those cases each
included a more detailed factual basis, and in one of them the victim actually had been
interviewed by a probation officer. See United States v. Washington, 500 F. App’x 279, 282–83
(5th Cir. 2012) (unpublished) (upholding the bodily-injury enhancement when the PSR stated
that the victim was punched in the nose with a closed fist and “felt pain,” which the victim
corroborated during an interview with a probation officer); United States v. Green, 

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       Here, the only evidence supporting the bodily-injury enhancement is a
bare, conclusionary statement in the PSR from a witness that the robbers
“caused [the victim] pain in her arm.” As noted above, “[b]ald, conclusionary
statements” in a PSR are not sufficiently reliable for sentencing purposes. See

n.2 (quoting 

). Contrary to
the government’s position, Zuniga had no burden to offer rebuttal evidence to the
description of bodily injury in the PSR because that description lacked sufficient
indicia of reliability. See 

we conclude that the district
court’s factual finding of bodily injury to support the § 2B3.1(b)(3)(A)
enhancement was clearly erroneous because it was based on unreliable facts in
the PSR. 

. The government does not argue that this
error was harmless, nor could it.
                                             III.
       For the foregoing reasons, we conclude that it was not error for the district
court to impose the management enhancement, but the bodily-injury
enhancement is VACATED, and the case is REMANDED for resentencing.




App’x 469, 472 (5th Cir. 2011) (unpublished) (upholding the bodily-injury enhancement when
the record contained evidence that the victim “suffered temporary hearing loss, irritation, and
continuing ringing in his ears as a result of [the defendant’s] firing of a shotgun toward the
wall approximately three to four inches away from [the victim’s] face. . . . and sought medical
attention for the problem and received prescriptions”).

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