     Case: 15-40939       Document: 00513452749         Page: 1     Date Filed: 04/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                     No. 15-40939
                                                                                      Fifth Circuit

                                                                                    FILED
                                   Summary Calendar                              April 5, 2016
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                  Plaintiff - Appellee

v.

JEAN CARLOS FRANCISCO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-1034


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jean Carlos Francisco challenges his 30-month sentence imposed
following his guilty-plea conviction for illegal reentry into the United States
after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1). He contends his
sentence is procedurally and substantively unreasonable because the court
improperly considered, and gave significant weight to, a domestic-battery
arrest, for which the charge was dismissed for lack of sufficient evidence. He


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-40939     Document: 00513452749      Page: 2    Date Filed: 04/05/2016


                                  No. 15-40939

maintains that arrest is not reliable evidence he was guilty of the conduct
described.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). 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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      At sentencing, Francisco made a general objection to the excessiveness
of the sentence, and for the court’s failing to adequately explain the reasons for
it. When the court noted Francisco had made “blanket objections” and asked
for clarification, he noted the court had been aware of his “background” at the
first sentencing, but did not raise the assertions he now presents on appeal.
See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (“To preserve error,
an objection must be sufficiently specific to alert the district court to the nature
of the alleged error and to provide an opportunity for correction”).
      Accordingly, we review only for plain error.          E.g., United States v.
Warren, 720 F.3d 321, 332 (5th Cir. 2013). Under this standard, Francisco
must show a forfeited plain (clear or obvious) error that affected his substantial
rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so,
our court has discretion to correct the reversible plain error, but should do so
only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.




                                         2
    Case: 15-40939       Document: 00513452749      Page: 3    Date Filed: 04/05/2016


                                    No. 15-40939

      Francisco cites no authority supporting his contention that a statement
within a Pre-sentence Investigation Report’s (PSR) factual recitation of an
arrest, where a charge was dismissed for lack of sufficient evidence, means the
factual recitation lacks sufficient indicia of reliability, such that it is plain error
for a court to consider it at sentencing. He also fails to acknowledge that “[i]t
is well-established that prior criminal conduct not resulting in a conviction
may be considered by the sentencing judge”. United States v. Fuentes, 775 F.3d
213, 219 (5th Cir. 2014) (internal quotation marks omitted). In other words,
he has not shown the requisite clear or obvious error. See United States v.
Fields, 777 F.3d 799, 802 (5th Cir. 2015).
      Moreover, a within-advisory-Guidelines sentence, such as Francisco’s, is
entitled to a presumption of reasonableness. E.g., United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). “The presumption is rebutted only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.”   Id.   Here, after weighing the 18 U.S.C. § 3553(a) factors, and
considering Francisco’s mitigating contentions, the court determined a mid-
range sentence was appropriate. Because he has failed to demonstrate that,
by considering the factual recitation in the PSR, the court improperly
considered and gave significant weight to an improper factor, he again fails,
concerning the presumption of reasonableness, to show the requisite clear or
obvious error. See id.
      AFFIRMED.




                                          3
