Opinion
No. 07-40243 Summary Calendar.
January 3, 2008.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Christopher Atkinson Jenkins, Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendants-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 2:06-CR-685-1.
Before KING, DAVIS and CLEMENT, Circuit Judges.
David Leslie Rose appeals the sentence imposed following his guilty plea to possession of child pornography. He argues that (1) the district court violated his Fifth Amendment privilege in imposing an above-guideline sentence and, alternatively, (2) the sentence was unreasonable. We affirm.
Rose argues that the district court violated his right against self-incrimination when it adversely inferred from his silence that he had committed the allegations of sexual abuse contained in the Presentence Report (PSR) to upwardly depart from the advisory guideline range. Rose did not preserve this constitutional issue for review, and, therefore, we review for plain error only. See United States v. Martinez, 496 F.3d 387, 389 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 728, 169 L.Ed.2d 568 (2007) (No. 07-7436). When Rose invoked his Fifth Amendment privilege, the district court construed his silence as a refusal to controvert the allegations, thereby entitling the court to rely on them as a basis for an upward departure. See FED.R.CRIM.P. 32(i)(3)(A); United States v. Romero-Rendon, 220 F.3d 1159, 163 n. 4 (9th Cir. 2000). Rose has shown no Fifth Amendment error on the part of the district court, plain or otherwise.
Rose alternatively argues that his non-guideline sentence was unreasonable because the hearsay allegations of sexual abuse contained in the PSR lacked sufficient indicia of reliability, but were nevertheless given significant weight, and the sentence did not account for a factor that should have received significant weight, i.e. his acceptance of responsibility for the offense. The reliability of Rose's ex-wife's hearsay allegations was bolstered by his daughter's corroborative statement that her aunts had been sexually abused by Rose and, additionally, by information that Rose's post-divorce contact with his daughters was restricted. The hearsay evidence, which Rose failed to rebut, carried sufficient indicia of reliability such that the district court was entitled to adopt that information without further inquiry. See United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004); United States v. Golden, 17 F.3d 735, 736 (5th Cir. 1994). Rose's argument that his acceptance of responsibility precluded the district court from upwardly departing to the statutory maximum is unpersuasive. He has therefore not shown the sentence to be unreasonable. See United States v. Smith, 440 F.3d 704, 706, 708 (5th Cir. 2006).
AFFIRMED.