IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-40360 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TWILA DENISE BATES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. V-98-29 _________________________________________________________________

October 17, 2000

Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN,*

District Judge.

PER CURIAM:**

Twila Denise Bates was convicted on three counts of

distribution of cocaine base in violation of 21 U.S.C.

* District Judge of the Northern District of Texas, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. §§ 841(a)(1) and (b)(1)(C) and on one count of conspiracy to

distribute more than fifty grams of cocaine base in violation of

, 841(a)(1), and 841(b)(1)(A). The district

court sentenced Bates to 240 months on each of the distribution

counts. On the conspiracy conviction, the district court

enhanced Bates’s sentence by three levels after finding that she

was a “manager or supervisor” of criminal activity involving five

or more participants. Consequently, Bates was sentenced to 324

months in prison on this charge. Bates timely appealed the

sentence on the conspiracy conviction, arguing that the evidence

was insufficient to support the district court’s finding that her

criminal activity involved five or more participants. For the

following reasons, we VACATE the sentence on the conspiracy

conviction and REMAND to the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

One recommendation in the Presentence Investigation Report

(PSR) was that the district court adjust Bates’s offense level by

four levels for her role as a “leader or organizer” of criminal

activity involving five or more participants. The reference to

the number of participants stated:

As to role adjustments, Bates is viewed as the primary source of crack cocaine into the organization which involved Toliver, Craig Jones, Warren Johnson, Raymond Ramirez, and Thomas Durham who distributed the contraband to regular customers. Toliver was the primary source of contraband to Jones who sold the drugs for her.

2 PSR, at 4, ¶ 9 (“Paragraph 9”). Bates objected to Paragraph 9

because, inter alia, it failed to cite to the specific

information relied on to reach its conclusion. Over Bates’s

objections, the district court found that there were five or more

participants and named Bates, Toliver, Ramirez, Durham, and

Jones. However, the district court determined that Bates was a

manager or supervisor of the activity, rather than a leader or

organizer, and thus increased Bates’s sentence by three levels

under § 3B1.1(b) of the U.S. Sentencing Guidelines. See U.S.

SENTENCING GUIDELINES MANUAL § 3B1.1(b) (1998). After making this

finding, the district court, “in all other respects,” adopted the

findings set forth in the PSR.

II. STANDARD OF REVIEW

The district court’s decision to increase Bates’s offense

level by three points for her aggravating role in the transaction

is a finding of fact that should be reviewed for clear error.

See United States v. Kelley,

(5th Cir. 1998);

United States v. Narvaez,

(5th Cir. 1994).

“There must be an acceptable evidentiary basis for the court’s

fact findings at the sentencing hearing.” Kelley,

. However, if there are no factual findings supporting a

decision, we review that decision de novo. See United States v.

Castaneda,

, 836 & n.24 (5th Cir. 1998) (“We agree

that [clear error] is the appropriate standard for reviewing a

3 district court’s findings as to the underlying facts . . . . In

the absence of such factual findings, however, we must conduct a

de novo review[.]”).

III. DISCUSSION

Bates contends that the PSR lacked sufficient indicia of

reliability to support the finding that Durham was a participant

in the criminal activity managed or supervised by Bates. She

asserts that the only information in the record that can support

the court’s finding is Paragraph 9, which she argues is a “single

conclusory statement.” Without Durham’s inclusion, Bates

contends that there is an inadequate number of participants on

which to base the adjustment.

The Government responds that evidence from the PSR, the

trial, and the Government’s sentencing memorandum “overwhelmingly

established criminal activity involving at least five

participants.” It contends further that although the district

court identified only five participants, the evidence

demonstrated that there were other criminal participants not

specified by the court. The Government concedes that the

participation of four of the individuals listed by the court--

Toliver, Bates, Ramirez, and Jones--was established through trial

testimony, whereas Durham’s involvement was discussed only in the

Government’s sentencing memorandum. The Government asserts,

however, that the information in the sentencing memorandum was

4 “hardly conclusory.” Therefore, the Government argues that

Bates’s sentence should be affirmed.

Rule 32 of the Federal Rules of Criminal Procedure provides

that when a defendant objects to portions of the PSR, the

district court “must make either a finding on the allegation or a

determination that no finding is necessary because the

controverted matter will not be taken into account in . . .

sentencing.” FED. R. CRIM. P. 32; see also United States v. Puig-

Infante,

(5th Cir. 1994). If the PSR is

controverted, “the party seeking an adjustment in the sentence

level must establish the factual predicate justifying the

adjustment by a preponderance of relevant and sufficiently

reliable evidence.” United States v. Elwood,

(5th Cir. 1993) (internal quotations and citation omitted).

Rule 32 does not, however, “‘require a catechismic

regurgitation of each fact determined and each fact rejected.’”

Puig-Infante,

(quoting United States v. Sherbak,

(5th Cir. 1992)); see also United States v.

Gallardo-Trapero,

(5th Cir. 1999), cert.

denied,

(2000). Instead, the court may make

implicit findings by adopting the PSR. See Gallardo-Trapero,

. However, “‘[b]ald, conclusionary statements do not

acquire the patina of reliability by mere inclusion in the PSR.’”

5 United States v. Rome,

(5th Cir. 2000) (quoting

Elwood,

).1

In this case, the district court stated that it had based

its findings regarding the five participants upon the trial

testimony. However, there was no testimony or evidence

concerning Durham at trial. The only reference to Durham in the

record, aside from that in the Government’s sentencing

memorandum, is contained in Paragraph 9. We agree with Bates

that the simple inclusion of Durham’s name in Paragraph 9 does

not have sufficient indicia of reliability to support the

district court’s finding that Durham was a participant. Instead,

it is a “bald, conclusionary statement” qualifying Durham as a

participant, unsupported in the factual allegations in the PSR or

in the addendum to the PSR. Nor did the Government produce any

1 Furthermore, we have recently held that a sentencing court clearly errs in concluding that individuals are “participants” for the purpose of a § 3B1.1 sentence enhancement “without first determining that each of them was criminally responsible for commission of an offense.” United States v. Maloof,

(5th Cir. 2000). The commentary to § 3B1.1 defines a “participant” as “a person who is criminally responsible for the commission of the offense, but need not have been convicted.” U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. 1. The facts in Maloof are similar to those in this case because the sentencing court in Maloof, in enhancing the defendant’s sentence under § 3B1.1(a), merely listed the five participants who were alleged to have been involved in a conspiracy to restrain trade in violation of the Sherman Act. See Maloof,

. The Maloof decision is unclear as to whether the court relied upon a PSR or testimony; however, this court vacated the defendant’s sentence and remanded to the district court “with instructions to clearly articulate the legal and evidentiary bases for the punishment to be imposed and to resentence [the defendant] accordingly.”

(emphasis added).

6 evidence at the sentencing hearing regarding Durham when Bates

objected.

Although the PSR is an insufficient evidentiary basis to

support the finding that Durham was a participant, the Government

nevertheless urges us to fill the gap by relying on its

sentencing memorandum. The sentencing memorandum (which did not

rely on Durham to reach the requisite five participants) stated:

Durham advised the FBI that he purchased half ounce quantities from Bates on two or three occasions in 1997. These purchases took place in Houston. Durham also stated that he purchased crack from Raymond Ramirez on 50 occasions prior to Ramirez going to drug rehabilitation in 1996.

The Government argues that the sentencing memorandum provided

sufficiently reliable information to support the finding that

Durham was a participant. In principle, we agree with the

Government that sentencing courts may rely upon a sentencing

memorandum. However, in the instant case, we are unsure that the

district court in fact did so.

“In determining . . . whether a departure from the

guidelines is warranted, the court may consider, without

limitation, any information concerning the background, character

and conduct of the defendant, unless otherwise prohibited by

law.” U.S. SENTENCING GUIDELINES MANUAL § 1B1.4. Moreover, when

resolving a dispute over a particular issue, “the court may

consider relevant information without regard to its admissibility

under the rules of evidence applicable at trial.” Id. § 6A1.3.

7 However, such evidence must have “sufficient indicia of

reliability,” and “the parties shall be given an adequate

opportunity to present information to the court regarding [the

disputed factor].” Id.

This court has relied upon a Government sentencing

memorandum to support a finding on a restitution amount. See

United States v. Plewniak,

(5th Cir. 1991).2

Moreover, we have approved of the consideration of a letter

attached to a sentencing memorandum when imposing a sentence, see

United States v. Adi,

(5th Cir. 1985), and

we have required a court to make factual findings regarding a

defendant’s objections to information within a sentencing

memorandum, see United States v. Manotas-Mejia,

(5th Cir. 1987). These cases demonstrate that a

2 We note that many of our sister circuits have also upheld findings based upon a Government’s sentencing memorandum. See, e.g., United States v. Roper,

(6th Cir. 1998) (upholding sentencing court’s finding of defendant’s perjury under clear error “[b]ecause the Government’s sentencing memorandum proffered that [defendant] had perjured himself”); United States v. Spencer,

(2d Cir. 1997) (finding that district court properly applied sentence enhancement after it “explicitly endorsed the Government’s sentencing memorandum listing the number of persons”); United States v. Booze,

(D.C. Cir. 1997) (concluding that sentencing court could properly rely upon Government’s sentencing memorandum because defendant failed to dispute its representations); United States v. Parikh,

(11th Cir. 1988) (approving district court’s reliance upon sentencing memorandum when defendants “did not allege a factual inaccuracy”); United States v. Branco,

(9th Cir. 1986) (finding court’s reliance upon sentencing memorandum appropriate when no reason to suggest information to be unreliable existed).

8 sentencing memorandum may be relied on by a sentencing court if

it meets the test of sufficient reliability.

The references to Durham in the sentencing memorandum were

not conclusionary, and the information originated from interviews

with the FBI. On its face, the sentencing memorandum may be

sufficiently reliable in the absence of opposing evidence by

Bates. The problem here is that the district court did not

indicate that it had relied on the sentencing memorandum, nor did

it make any finding as to its reliability.

Because we are unable to determine whether the district

court took into account the sentencing memorandum and nothing

expressly relied on by the district court provides an evidentiary

basis for the conclusionary statement in Paragraph 9, we vacate

Bates’s sentence on the conspiracy conviction and remand to the

district court with instructions that the district court (i) make

a specific finding on Durham’s involvement,3 (ii) choose another

individual for whom the record provides an evidentiary basis for

a finding of participation or (iii) forego the enhancement.4

3 Bates did not object to the accuracy of the sentencing memorandum in her case. However, she had already objected specifically to the PSR’s statement containing the reference to Durham. Therefore, we believe a disputed issue exists regarding Durham’s involvement that the district court failed to address by making the appropriate findings. The district court can, if it chooses, rely upon the sentencing memorandum’s information regarding Durham, and Bates may offer further objections. 4 Moreover, we are mindful of the Supreme Court’s decision in Williams v. United States, which would preclude remand if this court is able to determine that “the district court would have

9 IV. CONCLUSION

Bates’s conviction is AFFIRMED, her sentence on the

conviction for distribution is AFFIRMED, her sentence on the

conspiracy conviction is VACATED, and the case is REMANDED to the

district court for resentencing on the conspiracy conviction.

imposed the same sentence had it not relied upon the invalid factor or factors.”

(1992). However, because we are constrained by Maloof’s requirement that the sentencing judge must first make a finding that each participant is criminally responsible for the offense, we cannot conclude that such a harmless error analysis is appropriate in this case. The district court made no findings to guide us in an analysis of whether it would have found other individuals, aside from the five named at sentencing, responsible for the offense. Therefore, we are unable to determine if the district court would have imposed the same sentence had it not relied upon Durham as a participant.

10