United States v. Oscar Turcios-Rivera , 583 F. App'x 375 ( 2014 )

Case: 14-40111 Document: 00512817096 Page: 1 Date Filed: 10/28/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40111
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 28, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
OSCAR TURCIOS-RIVERA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-884-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Oscar Turcios-Rivera pleaded guilty to one count of illegal reentry
following deportation. The presentence report (PSR) recommended an
advisory guidelines range of 27 to 33 months of imprisonment. In imposing a
45-month term of imprisonment after considering the 18 U.S.C. § 3553(a)
factors, the district court noted that Turcios-Rivera’s 1991 conviction for lewd
and lascivious acts was not counted in the criminal history score, that he had
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-40111 Document: 00512817096 Page: 2 Date Filed: 10/28/2014
No. 14-40111
reentered the United States within 5 months of being deported following a 24-
month sentence for illegal reentry, and that he had “other criminal conduct”
against his stepson.
On appeal, Turcios-Rivera challenges the above guidelines sentence as
substantively unreasonable because the district court relied on an improper
factor, his 2004 arrest, and made an error in judgment in balancing the
§ 3553(a) sentencing factors because it overvalued the significance of his 1991
conviction. We review sentences for substantive reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
With respect to the 2004 arrest, Turcios-Rivera did not object to the PSR
containing information about the assault in question. 1 To the contrary, when
asked by the district court if there were “any mistakes anywhere in this
report,” he said “No, everything’s perfect, Your Honor.” At sentencing, a
district court may not consider a bare arrest record contained in a PSR. United
States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012), cert. denied, 133 S. Ct. 1845(2013). However, in the absence of any indication that the information is not
reliable, the court can consider specific information provided in the PSR. See
Harris, 702 F.3d at 230-31 & n.1. Here, the PSR contained specific information
from the offense report that Turcios-Rivera struck his stepson “in the head and
face several times leaving cuts” on his face. It thus bore a sufficient indicia of
reliability to be considered unless disputed. See id. On this record, the district
court did not err in considering the 2004 arrest.
1 Turcios-Rivera objected to the substantive reasonableness of his sentence in the
district court. However, he did not raise the alleged improper consideration of his arrest
record, which we have treated as a procedural error, see Harris, 702 F.3d at 229, in the
district court. Under our precedent, then, plain error review would be the appropriate
standard. United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007). Because we conclude
that Turcios-Rivera has not shown reversible error even if the error were preserved, we need
not address the standard of review further.
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No. 14-40111
Turcios-Rivera also argues that the district court gave undue weight to
his 1991 conviction and is asking this court to reweigh the sentencing factors.
The sentencing court is in the best position to find facts and judge their import.
See Gall, 552 U.S. at 51; United States v. Scott, 654 F.3d 552, 555 (5th Cir.
2011). The 45-month sentence, which was 12 months above the top of the
sentencing guidelines range of 27 to 33 months of imprisonment, is not
substantively unreasonable. See Smith, 440 F.3d at 708, 710.
AFFIRMED.
3