IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________ No. 95-50396 Conference Calendar __________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GUILLERMO VILLALBA, also known as Guillermo Villalva, Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-93-CR-294-1 - - - - - - - - - - February 29, 1996 Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:* Guillermo Villalba argues that the district court erred in determining that the Government did not have the burden of proving that his base offense level should be adjusted upward for his leadership role in the conspiracy.

Villalba is correct that the Government had the burden of proving by a preponderance of the evidence that his conduct warranted an upward adjustment. However, after reviewing the presentence report (PSR), Villalba's objections, and the * Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

No. 95-50396 -2- transcript of the sentencing hearing, we affirm the district court's decision to make the upward adjustment based on the reliable and unrebutted evidence contained in the PSR that reflected that Villalba had a leadership role in the conspiracy.

See United States v. Ayala, 47 F.3d 688, 689-90 (5th Cir. 1995) AFFIRMED.