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

                                                                            FILED
                                                                         February 4, 2009

                                       No. 08-10053                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

CARLY ELIZABETH ADAMS

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:07-CR-111-4


Before O’CONNOR, Associate Justice (Ret.),* WIENER and STEWART, Circuit
Judges.
PER CURIAM:**
       Defendant-Appellant Carly Elizabeth Adams pleaded guilty to possession
of stolen mail in violation of 18 U.S.C. § 1708. She now appeals her sentence,
claiming that the district court erred in applying an offense-level enhancement




       *
        The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme
Court, (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).
       **
          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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-10053

for an offense that involved at least 50 but less than 250 victims. Finding no
reversible error, we affirm.
                      I. FACTS AND PROCEEDINGS
      On January 17, 2007, Burleson (Texas) Police Department officers
encountered two of Adams’s co-defendants in a Wal-Mart parking lot. The
officers took them into custody, at which time they asked the officers to deliver
propane to Adams’s residence so that Adams and others at the residence could
have heat. When the officers arrived, they received Adams’s permission to enter
the home. The officers then observed in plain view various identifications, credit
cards, and mail. They requested and obtained Adams’s consent to search the
residence. The search revealed additional credit cards and identifications as
well as pieces of mail addressed to different locations and to individuals other
than those living at the residence. A grand jury subsequently indicted Adams
for possession of stolen mail in violation of 18 U.S.C. § 1708. Although Adams
and the government did not reach a plea agreement, she pleaded guilty.
      At Adams’s preliminary hearing in the district court, Postal Inspector
Mona Hernandez testified that she discovered more than 100 pieces of mail in
the RV and, even though she did not “recall specifically,” made a “rough
estimate” that she had identified more than 50 victims. On cross-examination,
Adams did not question Inspector Hernandez’s estimate. The U.S. Probation
Officer’s pre-sentence report computed Adams’s total offense level based on an
enhancement pursuant to section 2B1.1(b)(2)(B) of the United States Sentencing
Guidelines (the “Guidelines”) for an offense that involved at least 50 but less
than 250 victims. Adams filed objections to the pre-sentence report including,
inter alia, a challenge to that enhancement because the pre-sentence report
positively identified only 24 victims. The government explained that the pre-
sentence report identified only those victims associated with restitution or loss-
amount calculations, but that Inspector Hernandez had determined that there

                                        2
                                        No. 08-10053

were at least 50 “victims,” a term defined to include each individual whose mail
was taken without however requiring that any financial loss have been
incurred.1 The government also stated that at sentencing Inspector Hernandez
would be available to testify. Indeed, Adams had the opportunity at sentencing
to cross-examine Inspector Hernandez but asked no questions related to the
enhancement for number of victims. The district court adopted the pre-sentence
report’s factual findings and enhanced Adams’s offense level by four levels
because the offense involved at least 50 but less than 250 victims. This timely
appeal followed.
                                       II. ANALYSIS
A.     Standard of Review
       We review a district court’s application of the Guidelines de novo and its
factual findings for clear error.2 A factual finding is not clearly erroneous as long
as it is “plausible in light of the record as a whole.”3 “However, there must be an
acceptable evidentiary basis for the court’s factfindings at the sentencing
hearing.”4 Recent Supreme Court cases addressing an appellate court’s review
of district court’s sentencing decisions, e.g., Gall v. United States, Kimbrough
v. United States, and Rita v. United States, do not “purport to alter our review
of the district court’s construction of the Guidelines or findings of fact.”5



       1
          The government also represented that its case agent had received additional
information regarding the victims and that this information would be included in an addendum
to the pre-sentence report. The government filed an addendum that did not disclose any
specific victim-related information. It also appears that defense counsel never received such
data.
       2
           United States v. Cisneros-Guiterrez, 517 F.3d 751, 764 (5th Cir. 2008).
       3
           Id. (internal quotation marks and citation omitted).
       4
           United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
       5
           Cisneros-Guiterrez, 517 F.3d at 764 (citing Gall v. United States, 128 S. Ct. 586

                                               3
                                       No. 08-10053

B.     Claimed Sentencing Error
       The sole issue that Adams asks us to resolve is whether the government
provided adequate evidence to support the district court’s conclusion that she
possessed the undelivered mail of at least 50 different victims. The commentary
to the Guidelines directs that in cases involving the taking of undelivered United
States mail, the term “victim” includes “any person who was the intended
recipient, or addressee, of the undelivered United States mail.”6
       The party that seeks an adjustment to the base offense level under the
Guidelines, here the government, must prove by a preponderance of the evidence
that the adjustment is warranted.7 In this case, the district court overruled
Adams’s objections and adopted the pre-sentence report and its addendum as the
court’s findings of fact. Courts typically adopt a pre-sentence report’s factual
findings because,
             [g]enerally, a PSR bears sufficient indicia of reliability to
       permit the district court to rely on it at sentencing. The PSR,
       however, cannot just include statements, in the hope of converting
       such statements into reliable evidence, without providing any
       information for the basis of the statements. Normally, the
       defendant has the burden to show that the information relied on in
       a PSR is inaccurate. The rebuttal evidence presented by the
       defendant must show that the PSR’s information is materially
       untrue, inaccurate or unreliable.8


(2007); Kimbrough v. United States, 128 S. Ct. 558 (2007); Rita v. United States, 127 S. Ct.
2456 (2007)).
       6
         U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.4(C)(i) (2008); see United States
v. Wise, 447 F.3d 440, 446 (5th Cir. 2006) (per curiam) (“[W]e must consider the commentary
to the Guidelines as authoritative.”).
       7
         United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (per curiam), overruled on
other grounds by United States v. Reyna, 358 F.3d 344, 347, 350 (5th Cir. 2004).
       8
          United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001) (internal quotation marks
and citations omitted) (emphasis added); see also United States v. Alford, 142 F.3d 825, 832
(5th Cir. 1998) (“A district court may adopt facts contained in the PSR without further inquiry
if the facts have an adequate evidentiary basis and the defendant does not present rebuttal

                                              4
                                         No. 08-10053

“[I]nformation in the PSR that is unrebutted by the defendant bears sufficient
indicia of reliability to be considered evidence by the district court.”9 Further,
mere objections are not competent rebuttal evidence.10
       We have not had occasion to determine whether a district court may rely
on an approximation of the number of victims for sentencing purposes in
undelivered mail cases. Two related sentencing issues are instructive, however,
in reaching our conclusion that, here, the district court did not clearly err.
       First, the Guidelines commentary related to calculating the amount of loss
caused by an offense11 provides support by analogy for permitting estimations
of the number of victims in an undelivered-mail case. When a court calculates
the amount of loss, it “need only make a reasonable estimate of the loss” because
“[t]he sentencing judge is in a unique position to assess the evidence and
estimate the loss based upon that evidence.”12 A court bases its estimation on
“available information” including various factors such as the “approximate
number of victims multiplied by the average loss to each victim.”13 To permit or
even require courts to approximate the number of victims when calculating
enhancements for amount of loss, but to prohibit such approximations when



evidence.”). Adams, citing Taylor, misinterprets the extent to which a district court is entitled
to rely on a pre-sentence report. The burden to produce evidence rebutting a pre-sentence
report is typically on the defendant. Taylor only states that a portion of this burden shifts to
the government when a defendant enters a plea agreement involving use immunity. See 277
F.3d at 727. Adams did not enter into such an agreement.
       9
            United States v. Roush, 466 F.3d 380, 388 (5th Cir. 2006).
       10
            United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002).
       11
           See U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.3(C); see also id.
§ 2B1.1(b)(1).
       12
            Id. § 2B1.1 cmt. n.3(C).
       13
         Id. § 2B1.1 cmt. n.3(C)(iii) (emphasis added); see United States v. Krenning, 93 F.3d
1257, 1269 n.20 (5th Cir. 1996).

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                                        No. 08-10053

calculating enhancements for the number of victims would be illogical in the
extreme.
       Second, a commentary to the Guidelines explicitly permits approximations
in at least one other context. In controlled-substance cases, approximations of
drug quantity are sometimes permissible.14                   And, although a court’s
approximation must bear “sufficient indicia of reliability to support its probable
accuracy,” a district court is entitled to rely on the pre-sentence report in the
absence of rebuttal evidence that demonstrates inaccuracy.15 We have approved
of such approximations even when a calculation’s accuracy was questionable at
best. For example, in United States v. Alford, the district court accepted the pre-
sentence report’s conclusion regarding the number of kilograms of marijuana
that was attributable to the charged offenses.16 On appeal, the defendant in
Alford challenged the reliability of the pre-sentence report’s calculation, arguing
that it was based in part on the testimony of a witness who, on cross-
examination, had conceded that the quantities to which he testified “were
guesses and that the actual quantities could have been smaller.”17 Although in
that defendant’s view, the district court should have assumed a smaller quantity
for sentencing purposes, we held that the district court did not clearly err in
calculating the quantity of marijuana as it did.18 “The fact that [the witness’s]
testimony was somewhat imprecise did not preclude reliance on it for sentencing

       14
          See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1 cmt. n.12 (allowing for
approximations of the quantity of controlled substances when “there is no drug seizure or the
amount seized does not reflect the scale of the offense”).
       15
            United States v. Franklin, 148 F.3d 451, 460 (5th Cir. 1998) (quoting U.S.
SENTENCING GUIDELINES MANUAL § 6A1.3(a)); see United States v. Ayala, 47 F.3d 688, 690 (5th
Cir. 1995).
       16
            142 F.3d 825, 832 (5th Cir. 1998).
       17
            Id.
       18
            Id.

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                                       No. 08-10053

purposes because a district court may consider ‘estimates of the quantity of
drugs for sentencing purposes.’”19 Recognition that an amount could have been
smaller was nothing more than an acknowledgment that the amounts were
estimates rather than precise calculations.20 Additionally, the defendant offered
no rebuttal evidence to establish that the quantity of marijuana attributed to
him in the pre-sentence report was materially untrue.21                     Under all the
circumstances, the sentencing court’s conclusion regarding quantity was
plausible and thus not clearly erroneous.22
      Even though the instant case is not drug-related, the Guidelines neither
explicitly condone nor explicitly forbid approximations of the number of victims
in undelivered mail cases. Moreover, the drug-calculation framework, when
viewed in pari materia with the loss-calculation commentary, demonstrates the
logic of permitting estimates of the number of victims in undelivered mail cases:
The loss-calculation commentary confirms the propriety of permitting estimates,
and our drug-quantity precedent establishes that reliance on even rough
estimates does not constitute clear error per se.
      Further, in United States v. Perez, an unpublished and thus non-
precedential opinion, we considered a defendant’s objection to the same
enhancement Guideline as the one at issue in the instant case.23 There, we held
that the district court did not err in enhancing the defendant’s sentence on the
ground that there were at least 50 victims.24 The district court had based its


      19
           Id. (quoting United States v. Sherrod, 964 F.2d 1501, 1508 (5th Cir. 1992)).
      20
           Id.
      21
           Id.
      22
           Id.
      23
           102 F. App’x 388, 389 (5th Cir. 2004) (per curiam) (unpublished).
      24
           Id.

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                                       No. 08-10053

finding on the pre-sentence report and the testimony of an agent that “some 71
check-cashers and other endorsers were victimized.”25                    Without further
elaborating on the strength of the government’s evidence, we concluded that the
“evidence was plausible and uncontradicted by any defense evidence.”26 We thus
held that the district court’s factual finding of the number of victims was not
clearly erroneous.27 This disposition is consistent with finding no clear error
when a district court relies on rough estimates of the number of victims.
      Given this analysis, we hold that a district court does not clearly err per
se in an undelivered mail case when it relies on a bona fide estimate of the
number of victims. On the discrete facts of the instant case, the district court
was free to disregard Adams’s unsworn conclusional assertions that the pre-
sentence report was inaccurate.28 We have previously rejected a defendant’s
contention, unsupported by any rebuttal evidence, that a district court erred in
crediting a portion of a pre-sentence report which stated that she stole $8,000.29
Adams’s case is not distinguishable: The mere observance that a pre-sentence
report does not identify each victim by name does not constitute material
rebuttal evidence. Further, when she had the opportunity to cross-examine
Inspector Hernandez about her estimate of the number of victims, Adams failed
to do so. Having failed to make any such effort or to present any rebuttal
evidence, Adams has not established that the district court’s factual
determination lacks plausibility. And, the pre-sentence report’s calculation is
not merely a “bald assertion”; it is supported by Inspector Hernandez’s


      25
           Id.
      26
           Id.
      27
           Id.
      28
           See United States v. Caldwell, 448 F.3d 287, 291 (5th Cir. 2006).
      29
           See United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).

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                                         No. 08-10053

testimony.      The district court did not clearly err in making the factual
determination that Adams’s offense involved at least 50 but less than 250
victims.30 Accordingly, we affirm the court’s imposition of a four-level sentence
enhancement pursuant to section 2B1.1(b)(2)(B) of the Guidelines and affirm the
resulting sentence as well.
AFFIRMED.




       30
           Our deferential standard of review dictates this result on the facts of the subject case.
We note, however, that the district court adopted the pre-sentence report’s factual finding and
credited Inspector Hernandez’s testimony based on scant evidence. Were we reviewing the
district court’s decision de novo, we would be troubled, perhaps dispositively so, by the lack of
an explanation for the basis underlying the “rough estimate” of the number of victims.

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