IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-51221 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNESTO ARTURO RODRIGUEZ-DIAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-98-CR-733-DB-5 -------------------- September 21, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Ernesto Rodriguez-Diaz appeals the 140-month sentence

imposed on him after he pleaded guilty to conspiracy to import

cocaine and conspiracy to possess cocaine with the intent to

distribute. He argues that the district court clearly erred in

sentencing him on the basis of the 200-kilogram deal he

negotiated rather than the six kilograms that were seized prior

to and at his arrest. He also argues that the sentencing court

erred in finding that he was not a minor participant in the

conspiracy.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-51221 -2-

The Government has filed a motion to supplement the record

with the transcripts of a suppression hearing and the trial of

one of Rodriguez’s codefendants. The motion notes that in

denying Rodriguez’s objection about the drug quantity, the

district court relied on the evidence it had heard about the

transaction during these other proceedings. The Government did

not submit copies of these transcripts with its motion.

We review de novo the legal conclusions made by a sentencing

court. United States v. Fitzhugh,

(5th Cir.

1993). Findings of fact are reviewed for clear error.

The

district court’s determination of the amount of drugs

attributable to Rodriguez as well as its determination of his

role in the conspiracy are accordingly reviewed only for clear

error. United States v. Posada-Rios,

(5th

Cir.), cert. denied,

(1998). A presentence

report (PSR) generally bears sufficient indicia of responsibility

to be considered as evidence by a sentencing judge when making

factual determinations. United States v. Narviz-Guerra,

(5th Cir.), cert. denied,

(1998). When a

district court has relied on information contained in a PSR, the

defendant bears the burden of demonstrating that the information

is unreliable or untrue. United States v. Vital,

(5th Cir. 1995). Information contained in a defendant’s

unsworn objections to a PSR does not constitute competent

evidence. United States v. Huerta, ___ F.3d ___ (5th Cir.

July 27, 1999, No. 98-20812),

. No. 98-51221 -3-

Rodriguez argues that the district court erred in concluding

that his offense involved the 200 kilograms of cocaine that he

negotiated to sell an undercover agent. He contends that he was

not reasonably capable of providing more than, at most, the six

kilograms that were seized by the time of his arrest. See

U.S.S.G. § 2D1.1, comment. (n.12). In rejecting this contention,

the district court relied on testimony it heard during the

proceedings involving the codefendant. Except for the testimony

of one coconspirator, Mario Ramirez, Rodriguez did not include

transcripts of these other proceedings in the record on appeal.

“[T]he appellant bears the burden of creating the record on

appeal.” United States v. Coveney,

(5th Cir.

1993). See also Fed. R. App. P. 11(a). If the record as

compiled by the appellant “does not establish a basis for

reversal, we will affirm.” Coveney,

. If the

record does establish a basis for reversal and the appellee

wishes to rely on some alternative basis for an affirmance, the

burden of compiling a record in support of the alternative theory

is the appellee’s.

. In that circumstance, a

motion to supplement from the appellee is appropriate.

.

To “establish a basis for reversal,” Rodriguez must show

that the district court clearly erred in attributing 200

kilograms of cocaine to him. See, e.g., Vital,

.

In support of his argument, he relies on his own unsworn version

of the events as well as Ramirez’s testimony in the codefendant’s

trial that Ramirez would not have been able to supply 200 No. 98-51221 -4-

kilograms of cocaine. Because Rodriguez’s version of the

transaction was submitted to the district court as part of his

unsworn objections to the PSR, it did not constitute competent

evidence. See Huerta,

.

In addition, Ramirez’s testimony “does not establish a basis

for reversal.” At sentencing, the district court stated that the

evidence it heard in ruling on the codefendant’s motion to

suppress and during the codefendant’s trial supported the PSR’s

finding that Rodriguez was responsible for a 200-kilogram deal.

Without providing the transcripts of these other proceedings and

articulating why it was error to rely on the evidence revealed in

these proceedings, Rodriguez cannot demonstrate that the district

court committed clear error. At the sentencing hearing, the

district court stated that it found Ramirez’s statement to be

self-serving. See United States v. Roberson,

(5th Cir. 1989) (on giving deference to a sentencing court’s

credibility determinations). Rodriguez has given us no reason to

question this assessment. Rodriguez has shown no clear error in

the district court’s reliance on the PSR.

Rodriguez argues that the Eleventh Circuit’s decision in

United States v. Crespo,

(11th Cir. 1993),

demonstrates the district court’s error. He relies on language

in that decision suggesting that negotiations between Crespo and

agents about a potential sale were “not sufficient in themselves”

to prove that the defendant was reasonably capable of providing

the amount of drugs negotiated. In a later case, however, that

court stressed that Crespo’s holding was limited. “Our holding No. 98-51221 -5-

in Crespo,” stated the court, “was simply that under the facts of

that case, the district court was not clearly erroneous in its

conclusion that Crespo was unable to produce the negotiated

amount.” United States v. Jones,

(11th Cir.

1994). Likewise, we have never held that it was error for a

sentencing court, in determining the quantity of drugs an offense

involved, to rely solely on negotiations between a defendant and

agents. See United States v. Desimone,

(2d

Cir. 1997) (rejecting such a proposition). Rodriguez has not

shown that the district court relied only on negotiations between

Rodriguez and the undercover officer. At sentencing, the

district court specifically stated that it was relying as well on

discussions among the defendants.

The district court indicated that it was considering all of

the evidence it had heard concerning the conspiracy and that this

evidence “coincide[d] with the probation report.” Further, the

district court observed that negotiations between Rodriguez and

the undercover officer were specific as to the drug quantity and

price. The Second Circuit has held that it is proper to consider

whether negotiations for a drug deal “were sufficiently specific

as to logistical concerns such as price, quantity, and delivery

to constitute a plan rather than an exploratory discussion or

‘mere puffery.’” Desimone,

. We agree. Cf.

United States v. Torres,

(5th Cir. 1997)

(noting that when a government agent proposes a deal, a

sentencing court “should inquire whether the suggested amount is

realistic and doable”). Rodriguez has not shown that the No. 98-51221 -6-

district court relied solely on ambiguous negotiations about a

possible deal. To the contrary, the district court indicated

that it had considered an array of details and that these details

supported the findings in the PSR--that Rodriguez was

participating in what was to be a 200-kilogram deal.

It was Rodriguez’s responsibility to compile a record on

appeal that would “establish a basis for reversal.” Coveney,

. He has not satisfied this responsibility. Because

Rodriguez has shown no clear error on this record, the Government

is not responsible for ensuring that the record is complete

enough to support any of its arguments. Accordingly, the

Government’s motion to supplement the record is DENIED as

unnecessary.

Rodriguez argues that the district court erred in holding

that he was more than a minor participant in the conspiracy.

Under the guidelines, a “minor participant” in an offense is one

who is “less culpable than most other participants.” U.S.S.G.

§ 3B1.2, comment. (n.3). Because most offenses are committed by

participants of roughly equal culpability, the adjustment for

minor participation is to be used sparingly. United States v.

Mitchell,

(5th Cir. 1994). To qualify for

the adjustment, a defendant must show that “he at best was

peripheral to the advancement of the illicit activity.” United

States v. Thomas,

(5th Cir. 1991).

Rodriguez was not at all “peripheral to the advancement of”

the drug transaction. As the PSR indicated, he repeatedly met

with the undercover officer to negotiate terms and to arrange the No. 98-51221 -7-

deal. Rodriguez introduced Ramirez to the undercover officer.

When he was arrested, Rodriguez was in the process of delivering

the first installment of the deal. Rodriguez has not shown the

district court erred in finding he played more than a minor role

in the offense.

Rodriguez also complains that he should receive the

adjustment because Ramirez did. The record does not clearly

indicate that Ramirez was actually sentenced as a minor

defendant. Regardless, each participant in an offense “must be

separately assessed.” United States v. Thomas,

(5th Cir. 1992). Rodriguez has shown no error.

MOTION TO SUPPLEMENT DENIED; SENTENCE AFFIRMED.