Unpublished Disposition, 897 F.2d 534 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 897 F.2d 534 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Jose LIZARRAGA, Defendant-Appellant.

No. 89-50237.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 23, 1990.* Decided March 8, 1990.

Before GOODWIN, Chief Judge, and SNEED and FERGUSON, Circuit Judges.


Jose Lizarraga appeals his sentence imposed under the Sentencing Guidelines, following his conviction after a guilty plea for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1). The district court increased Lizarraga's base offense level on two grounds: (1) he possessed a firearm during commission of the offense; and (2) he was a leader of the group perpetrating the crime. We affirm.


Lizarraga contends that the district court erred by relying on the presentence report. That report, according to appellant, was "per se inaccurate" because it relied solely on his unsworn letter, which he later recanted. This argument lacks merit.

The government must prove factors requiring an upward adjustment in the sentence by a preponderance of evidence. United States v. Howard, No. 89-30093, slip op. 825, 833-34 (9th Cir. Jan. 25, 1990) (to be reported at 894 F.2d 1085). The district court may consider any sentencing information that has " 'sufficient indicia of reliability to support its probable accuracy.' " United States Sentencing Commission Guidelines Manual, Commentary to Sec. 6A1.3 (quoting United States v. Marshall, 519 F. Supp. 751, 754 (D.C.Wis.1981), aff'd, 719 F.2d 887 (7th Cir. 1982)); United States v. Burns, No. 89-50255, slip op. 763, 768 (9th Cir. Jan. 23, 1990) (to be reported at 894 F.2d 334) (per curiam). Statements against one's penal interest carry such indicia of reliability. See, e.g., United States v. Angulo-Lopez, 791 F.2d 1394, 1398 (9th Cir. 1986).

We do not regard as clearly erroneous the district court's finding that Lizarraga admitted in his letter and to the probation officer that he gave guns to his two codefendants, Jacinto Manjarrez-Murillo and Ricardo Robles-Villegas. Lizarraga's admissions against his penal interest and Robles-Villegas' corroborative statement support the district court's ruling that Lizarraga possessed a firearm in the commission of the offense. Angulo-Lopez, 791 F.2d at 1398.


Appellant further contends that the district court erred by adjusting his sentence upward because of evidence that he was a leader of the criminal enterprise. The district court may take a defendant's leadership role into account in revising upward the sentencing computation. United States v. Anderson, No. 89-10059, slip op. 1363, 1374 (Feb. 8, 1990); United States v. Baker, No. 89-50170, slip op. 771, 776 (9th Cir. Jan. 24, 1990) (to be reported at 894 F.2d 1083).

Appellant here told the probation officer that he provided his codefendants with the guns and the cocaine, and that he directed their activities. He also admitted communicating several times with a government informer, arranging the sale, and soliciting his codefendants' involvement. We find no error in the district court's rejection of Lizarraga's subsequent self-serving statement denying his involvement and in its finding that Lizarraga was a leader in the crime scheme. See Anderson, slip op. at 1374.

For these reasons, we affirm the judgment of the district court.



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3