     Case: 13-51211      Document: 00512777039         Page: 1    Date Filed: 09/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-51211
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 22, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GONZALO ARCE, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-769-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Gonzalo Arce, Jr., pleaded guilty to possession with intent to distribute
more than 100 kilograms of marijuana, and the district court imposed a
sentence of 72 months of imprisonment, which was above the guidelines range
of 60 to 63 months. Arce argues on appeal that his sentence is substantively
unreasonable because it is largely based on speculation as to his history and
characteristics. Specifically, he contends that the district court improperly


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51211       Document: 00512777039         Page: 2     Date Filed: 09/22/2014


                                       No. 13-51211

considered his arrest record and improperly relied on his lack of employment
verification when imposing the sentence.               He also argues that the court
incorrectly assumed that the circumstances surrounding the sale of his house
to his parents were “[n]ot right” because his wife would not provide any
information regarding any financial gain from the sale.
       These arguments were not raised in the district court, and we generally
review for plain error arguments that were not raised below. See Puckett v.
United States, 556 U.S. 129, 135 (2009). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Id. If the appellant makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. To obtain relief, Arce
must show that there is a reasonable probability that the district court would
have imposed a lesser sentence if it had not considered his bare arrest records.
United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011).
       Even if the district court erred in considering some of Arce’s bare
arrests, 1 see United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013), Arce
has not shown that its consideration of the arrests in conjunction with other
permissible factors affected his substantial rights or seriously affected the
fairness and integrity of the judicial proceedings. United States v. Williams,
620 F.3d 483, 495 (5th Cir. 2010). A review of the sentencing transcript reflects
that, in addition to any consideration of Arce’s prior arrests, the district court
considered that Arce had been terminated from his last job because he was
unreliable and uncooperative, that he had a long history of drug abuse, and


       1 The presentence report (PSR) lists a number of Arce’s arrests. Although some of
these arrest records were bare because they provided only “the mere fact of an arrest,” others
were not and provided more detail regarding the circumstances leading to the arrest. See
United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012).


                                              2
    Case: 13-51211    Document: 00512777039     Page: 3   Date Filed: 09/22/2014


                                 No. 13-51211

that his criminal history was underrepresented due to two unscored
convictions. The record shows that the district court gave significant weight
to several valid 18 U.S.C. § 3553(a) factors and does not reflect that it gave
undue weight to Arce’s prior unexplained arrests. Arce has not demonstrated
that the district court would have imposed a lesser sentence if it had not
considered the record of his bare arrests and thus has failed to show a
substantial impact on his rights. See Williams, 620 F.3d at 96.
      Finally, Arce’s arguments that the district court erred in relying on his
unverified work history when imposing sentence and that the district court
made the incorrect assumption at sentencing that the sale of his house to his
parents was “[n]ot right” are foreclosed from review because underlying his
arguments are the district court’s factual determinations, i.e., whether the
court misconstrued his work history and whether the circumstances
surrounding the sale of his house were suspicious. When an issue is factual
and could have been resolved in the district court on proper objection, there
can never be plain error. United States v. Claiborne, 676 F.3d 434, 438 (5th
Cir. 2012) (per curiam); United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)
(per curiam). Thus, the only arguable reviewable issue on appeal is the district
court’s possible error in referencing bare arrests, and because we find no plain
error in that respect, his complaint of plain error in the reasonableness of the
final sentence is unavailing.
      AFFIRMED.




                                       3
