IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50065 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WOLFGANG ERBSTOESSER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas (98-CR-141-1) - - - - - - - - - -

October 5, 1999

Before POLITZ, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Wolfgang Erbstoesser appeals from his

sentence following his guilty-plea conviction for conspiracy to

possess with intent to distribute MDMA and cocaine, possession with

intent to distribute MDMA, and importation of MDMA. He first

argues that the district court clearly erred by attributing one

pound of crystal methamphetamine to him as relevant conduct,

contending that evidence of the methamphetamine sale was

insufficiently reliable and that the sale of methamphetamine did

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. not qualify as relevant conduct. He also asserts that the district

court clearly erred by applying a two-level leadership adjustment

to his sentence, pursuant to U.S.S.G. § 3B1.1(c). Factual findings

made by a sentencing court must be supported by a preponderance of

the evidence and are upheld unless clearly erroneous. United

States v. McCaskey,

(5th Cir. 1993). The

sentencing court’s interpretations of the guidelines are reviewed

de novo.

Evidence of Erbstoesser’s methamphetamine sale was obtained

from interviews conducted by DEA agents and was corroborated by

Erbstoesser’s own statements to the DEA agents. The evidence was

therefore sufficiently reliable for sentencing purposes. See

United States v. Shacklett,

(5th Cir. 1991).

Although Erbstoesser argued against the inclusion of the

methamphetamine sale as relevant conduct and the imposition of the

leadership adjustment at sentencing, he failed to present any

rebuttal evidence as to either issue. Erbstoesser has therefore

failed to show that the district court clearly erred by adopting

the PSR’s factual findings regarding these issues. See United

States v. Rogers,

(5th Cir. 1993)(no clear error

shown when defendant failed to present evidence to rebut PSR’s

finding regarding relevant conduct). As we affirm the sentence

imposed by the district court, we need not consider Erbstoesser’s

request for a remand for the sentencing court to apply the “safety

valve provision.”

AFFIRMED.

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