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United States v. Cecilio Sandoval-Gonzalez ( 2018 )


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  •      Case: 17-51073      Document: 00514612801         Page: 1    Date Filed: 08/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-51073                              FILED
Summary Calendar                      August 23, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CECILIO SANDOVAL-GONZALEZ,                     also   known      as   Cecilio         Domicilio
Sandoval-Gonzalez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-641-1
Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
Cecilio Sandoval-Gonzalez pleaded guilty to illegal reentry into the
United States, in violation of 8 U.S.C. § 1326(a), (b). His revised presentence
report (PSR) declined to include a three-level decrease to the offense level for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, finding that
Sandoval-Gonzalez continued to participate in criminal behavior while
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-51073    Document: 00514612801     Page: 2   Date Filed: 08/23/2018
No. 17-51073
incarcerated. On appeal, Sandoval-Gonzalez raises four related arguments.
First, he contends that the district court erred in determining that he was not
entitled to a three-level decrease to the offense level for acceptance of
responsibility. Second, he argues that the sentencing guideline calculation was
“unreasonable” because it was based on “unreliable information” concerning
Sandoval-Gonzalez’s continuing criminal activity. In issues three and four, he
claims that his sentence was procedurally and substantively unreasonable
because it was based on unreliable information.
This court will affirm the district court’s decision not to grant a
defendant a reduction for acceptance of responsibility unless that decision is
“without foundation.” United States v. Juarez-Duarte,
    513 F.3d 204
    , 211 (5th
Cir. 2008) (internal quotation marks and citation omitted). The defendant has
the burden of proving entitlement to the reduction. United States v. Thomas,
    120 F.3d 564
    , 574-75 (5th Cir. 1997). “The district court may adopt the facts
contained in a [PSR] without further inquiry if those facts have an adequate
evidentiary basis with sufficient indicia of reliability and the defendant does
not present rebuttal evidence or otherwise demonstrate that the information
in the PSR is unreliable.” United States v. Trujillo,
    502 F.3d 353
    , 357 (5th Cir.
2007) (internal quotation marks and citation omitted). The defendant has the
burden of presenting evidence to show that the facts in the PSR are “inaccurate
or materially untrue.” United States v. Cervantes,
    706 F.3d 603
    , 620-21 (5th
Cir. 2013) (internal quotation marks and citations omitted). Here, Sandoval-
Gonzalez did not offer any evidence in rebuttal to the PSR, but merely argued
that the PSR depended on unreliable and uncreditable hearsay. Therefore, he
failed to meet his burdens to show that the PSR’s facts were “inaccurate or
materially untrue” or that he was entitled to the reduction. See
    Cervantes, 706 F.3d at 620-21
    ;
    Thomas, 120 F.3d at 574-75
    .
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Case: 17-51073    Document: 00514612801      Page: 3    Date Filed: 08/23/2018
No. 17-51073
Sandoval-Gonzalez did not challenge the reasonableness of his sentence
in the district court. To show that the district court plainly erred by imposing
a procedurally or substantively unreasonable sentence, Sandoval-Gonzalez
must show an error that is clear or obvious and that affects his substantial
rights. See United States v. Baker,
    538 F.3d 324
    , 332 (5th Cir. 2008). This
court will correct such an error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings.
    Baker, 538 F.3d at 332
    .        A
discretionary sentence imposed within a properly calculated guidelines range
is entitled to a rebuttable presumption of reasonableness. United States v.
Alonzo,
    435 F.3d 551
    , 554 (5th Cir. 2006). Because the district court’s reliance
on the PSR was not erroneous and its guidelines calculation was correct,
Sandoval-Gonzalez has not overcome the presumption of reasonableness. See
    id. Accordingly, Sandoval-Gonzalez’s 
    sentence is AFFIRMED.
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