UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 97-30011

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ANTHONY BAEZ, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana (96-CR-97) January 26, 1998 Before WISDOM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

On July 11, 1996, Anthony Baez pleaded guilty to an indictment

charging him and 13 others with conspiracy to possess with intent

to distribute cocaine hydrochloride, in violation of

That same day, he entered into a Use and Derivative Use

Immunity Agreement with the United States. In exchange for Baez’s

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except in the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2 Neither the indictment nor the factual basis for Baez’s guilty plea included the amount of cocaine that would ultimately be attributed to him for purposes of sentence calculation. The factual basis does, however, note that Baez stored unspecified quantities of cocaine at his home on behalf of a codefendant. agreement to cooperate in its ongoing investigation of other

defendants, the government agreed to advise the sentencing court of

his assistance, and promised that none of the truthful information

he disclosed under the agreement would be used, directly or

indirectly, to increase his sentence.3

The district court eventually sentenced Baez to a 30-month

term of imprisonment, to be followed by a three-year term of

supervised release. Since neither the indictment nor the factual

basis for the guilty plea included the amount of cocaine

attributable to Baez for sentencing purposes, the district court

calculated his sentence on the basis of the recommendations set

forth in the Presentence Investigation Report. The Probation

Officer who prepared the report concluded that Baez should be held

responsible for having trafficked in approximately 612 grams of

cocaine. The district court accepted this finding over Baez’s

objections.

Baez’s principal contentions in this appeal are that the

district court clearly erred in concluding (1) that the Government

did not use immunized information for purposes of increasing his

sentence, and (2) that there was a sufficient evidentiary basis for

his sentence. A district court’s findings as to the quantity of

drugs upon which a sentence should be based are factual findings

3 Government agents debriefed Baez on July 15, 1996, under the terms of the immunity agreement.

2 that we review for clear error.4

Section 1B1.8 of the Guidelines provides that neither the

government nor the court may use information that a defendant has

furnished in reliance on a valid immunity agreement to increase his

or her sentence.5 Since immunity agreements are in the nature of

contracts,6 it is Baez’s burden to show by a preponderance of the

evidence that the government breached the agreement.7 Our

principal inquiry, then, is whether Baez has demonstrated that the

factual underpinnings of his sentence were tainted by the direct or

indirect use of the immunized information he furnished. We uphold

Baez’s sentence if the record reveals that the district court

relied on evidence that the government obtained from legitimate,

independent sources.8 If the record so reveals, neither the

government nor the district court can be said to have breached the

4 United States v. Rivera,

(5th Cir. 1990). 5 The Commentary to § 1B1.8 offers an illustration: “If a defendant is arrested in possession of a kilogram of cocaine and, pursuant to an agreement to provide information concerning the unlawful activities of co-conspirators, admits that he assisted in the importation of an additional three kilograms of cocaine, a fact not previously known to the government, this admission would not be used to increase his applicable guideline range, except to the extent provided in the agreement.” 6 United States v. Fulbright,

(5th Cir. 1986). 7 United States v. Mendoza,

(9th Cir. 1996). See also United States v. Watson,

(5th Cir. 1993) (defendant bore the burden of proving that the government breached a plea agreement by a preponderance of the evidence). 8 See

.

3 immunity agreement.

A sentencing court is justified in relying on information

provided in a presentence report that has an adequate evidentiary

basis.9 After conducting an extensive, three-session sentencing

hearing, the district court concluded that “the presentence report

had a valid evidentiary basis that was not connected to information

that was provided by defendant Baez in any immunized debriefings.”

The presentence report concluded that Baez had purchased one ounce

of cocaine from his codefendant, Raumondo Dominguez, had stored

another two ounces for Dominguez, and had been present in his own

home when Dominguez weighed seven more ounces. These amounts

totaled 10 ounces, or 283 grams of cocaine. The report further

stated that Baez should be held accountable for 329 grams that had

been seized from Dominguez upon the latter’s return from a cocaine-

purchasing trip to Florida. According to the report, wiretap

information revealed that Baez had been aware that Dominguez and

other codefendants were traveling to Florida to purchase cocaine,

and that Baez had agreed to furnish traveling expenses.10 The total

9 United States v. Tedder,

(5th Cir. 1996). See also United States v. Valencia,

(5th Cir. 1995) (a presentence report generally bears sufficient indicia of reliability to be considered as evidence by the district court in resolving disputed facts). 10 Drug conspirators are accountable not only for the quantities of drugs they actually possessed, but also for the quantities foreseeably possessed by their coconspirators in furtherance of the conspiracy. United States v. Bermea,

(5th Cir. 1994).

4 quantity of cocaine that the presentence report attributed to Baez

was approximately 612 grams, resulting in a base offense level of

26.11

It is clear to us that the presentence report had a sound

evidentiary basis that was independent of the information Baez

furnished to the government under the immunity agreement. In the

factual basis for his plea, Baez admitted that he had purchased

cocaine from, and stored cocaine for, Dominguez. He also admitted

that his wiretapped conversations with Dominguez showed a pattern

of dealing in cocaine. In addition, a search of Baez’s residence

uncovered a white powder residue, as well as three scales of the

type used for measuring distribution quantities of cocaine.

Finally, we note that while some of the evidence used to determine

Baez’s culpability was obtained directly from Dominguez,12 Baez has

not made the requisite showing that Dominguez would not have

furnished the inculpatory information but for Baez’s immunized

testimony.13 Accordingly, we affirm the district court’s findings

11 Section 2D1.1 of the Guidelines establishes base offense levels according to the quantity of drugs attributable to a defendant. Baez’s offense level was ultimately lowered to 19, which corresponded with a guideline range of 30-37 months’ imprisonment. 12 A probation officer interviewed Dominguez after Baez’s debriefing. Dominguez told a probation officer that he had weighed seven to nine ounces of cocaine in Baez’s residence, and that Baez knew that he was traveling to Florida to purchase cocaine. 13 See United States v. Gibson,

(5th Cir. 1995).

5 that the government did not breach the immunity agreement, and that

Baez’s sentence rests on a sufficient evidentiary basis. We have

carefully reviewed Baez’s remaining claims, and find no reversible

error.

AFFIRMED. All pending motions are hereby DENIED.

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