     Case: 16-10414       Document: 00513846343         Page: 1     Date Filed: 01/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fif h Circuit
                                     No. 16-10414                                    FILED
                                   Summary Calendar                           January 24, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

KIYUNTAE G. BEAUDOIN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-253-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Kiyuntae G. Beaudoin, who pleaded guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1), appeals his 120-month
sentence for that offense. In doing so, he presents one issue, asserting the court
erroneously applied a sentencing enhancement for using or possessing a
firearm in connection with another felony offense, pursuant to Guideline
§ 2K2.1(b)(6)(B).


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 16-10414

       A special agent for the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) observed Beaudoin’s post under the pseudonym “Kay Da
Fool”, advertising guns for sale on a Facebook gun-trading group website. The
ATF agent, attempting to purchase a weapon, contacted Beaudouin and
provided a telephone number assigned to an Arlington, Texas, police
department undercover officer. Officers from that department stopped and
apprehended Beaudoin while he was en route to sell a gun to the undercover
officer.
       Beaudoin does not challenge these facts. Instead, he contends the court
inappropriately imposed the sentencing enhancement, asserting the basis for
the aggravating indictment lacked sufficient indicia of reliability.        The
presentence investigation report (PSR), citing a police report, recommended
this enhancement based on, inter alia, Beaudoin’s indictment for aggravated
robbery. According to the police report, Beaudoin and an associate met the
theft victim under the guise of expressing interest in purchasing hubcaps for
an automobile. The sale did not occur, however, because Beaudoin and his
associate instead robbed the victim, who ran to a nearby store to telephone the
police. The victim told investigators Beaudoin brandished an AK-47-style rifle
during the robbery.     Officers responded and located Beaudoin’s vehicle,
matching the license-plate numbers provided by a witness to the robbery. A
search of Beaudoin’s vehicle and the residence where he was found yielded,
inter alia, multiple firearms and ammunition.
       Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness



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                                  No. 16-10414

under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.      E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      According to Beaudoin, the court clearly erred in finding, for purposes of
Guideline § 2K2.1(b)(6)(B), that he used or possessed a firearm in connection
with another felony offense. He contends the information in the PSR, obtained
from the victim of the other crime during the police investigation, was
unreliable because the victim was an acquaintance of Beaudoin’s and a twice-
convicted felon.
      For imposition of the enhancement, whether a firearm was used or
possessed in connection with another felony offense is a finding of fact,
reviewed for clear error, as discussed supra. E.g., United States v. Coleman,
609 F.3d 699, 708 (5th Cir. 2010). A finding is not clearly erroneous if it is
plausible in the light of the record as a whole. Id. And, a PSR is generally
sufficiently reliable to be considered as evidence by the district court in making
factual determinations. United States v. Nava, 624 F.3d 226, 231 (5th Cir.
2010). Where, as here, the defendant disputes such evidence, he has “the
burden of demonstrating that the information cannot be relied upon because it
is materially untrue, inaccurate or unreliable”. Id. (internal quotation marks
and citation omitted).
      A PSR that “is based on the results of a police investigation” is
sufficiently reliable for the district court to consider at sentencing. United
States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014) (internal quotation marks
and citation omitted).       Moreover, even in the absence of the victim’s
statements, a reasonable inference can be drawn from the remaining evidence



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                                   No. 16-10414

provided by the PSR that Beaudoin used a firearm in connection with another
felony offense. See Coleman, 609 F.3d at 708.
      Alternatively, any error in the application of the four-level enhancement
was harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 714, 718 (5th
Cir. 2010). The court clearly expressed it would have sentenced Beaudoin to
the statutory maximum sentence of 120 months regardless of the advisory
Guidelines sentencing range. Along that line, the court stated a sentence
above the statutory maximum would be required to satisfy the sentencing
concerns of 18 U.S.C. § 3553(a).
      AFFIRMED.




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