     Case: 11-30698     Document: 00511827803         Page: 1     Date Filed: 04/19/2012




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

                                                                            FILED
                                                                           April 19, 2012
                                     No. 11-30698
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHNNY D. MATHIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CR-372-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Johnny D. Mathis pleaded guilty to criminal interference with a right to
fair housing, a violation of 42 U.S.C. § 3631, and use of a firearm during a crime
of violence, a violation of 18 U.S.C. § 924(c). He received a within-guidelines
sentence of 60 months of imprisonment for his § 3631 conviction and a
consecutive sentence of 120 months for the § 924(c) conviction. On appeal,
Mathis argues that the district court committed a procedural error in its
calculation of the applicable guidelines range for his § 3631 conviction.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30698

      The United States Sentencing Guideline applicable to a violation of § 3631
is U.S.S.G. § 2H1.1, which, in this case, specified that the base offense level is
the greatest offense level from the Guidelines applicable to any underlying
offenses. The district court adopted the presentence report’s (PSR’s) findings
that the most analogous underlying offenses were aggravated assault and arson
and that the Guideline for an arson offense produced the greatest offense level.
Mathis argues on appeal that the district court erred in applying the arson
Guideline because he has continually denied setting fire to the victims’
residence, he did not plead guilty to a third count that alleged he had used fire
to commit a felony in violation of 18 U.S.C. § 844, tests of the burned premises
found no evidence of the use of ignitable liquids or accelerants, and it is just as
plausible that the food the victims left cooking on the stove accidentally started
the fire that destroyed their house.
      Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a).   United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we first determine
whether the sentence imposed is procedurally sound, including whether the
calculation of the advisory guidelines range is correct. We review the district
court’s interpretation and application of the Sentencing Guidelines de novo and
its findings of fact for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
      Factual findings under the Guidelines “must be based on reliable
information and a preponderance of the evidence.” United States v. Conner, 537
F.3d 480, 491-92 (5th Cir. 2008). “Generally, a PSR bears sufficient indicia of
reliability to permit the sentencing court to rely on it at sentencing. The
defendant bears the burden of demonstrating that the PSR is inaccurate; in the
absence of rebuttal evidence, the sentencing court may properly rely on the PSR
and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009)

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                                  No. 11-30698

(internal quotation marks and citation omitted). Rebuttal evidence presented
by the defendant must show that the PSR’s information is materially untrue,
inaccurate or unreliable. United States v. Parker, 133 F.3d 322, 329 (5th Cir.
1998).
      We conclude that the district court’s finding, based on its adoption of the
information in the PSR, that Mathis set fire to the victims’ residence was based
on reliable evidence and was established by a preponderance of the evidence,
particularly statements from the victims regarding the actions of Mathis and
reports from two separate arson investigations. Mathis has not presented
sufficient rebuttal evidence to demonstrate that the PSR was materially untrue,
inaccurate or unreliable. See Parker, 133 F.3d at 329. Therefore, the district
court was entitled to adopt the PSR. See Ollison, 555 F.3d at 164. As Mathis
has not shown that the district court clearly erred in finding that he set the fire,
he has not shown that the district court procedurally erred by using the arson
Guideline to determine his base offense level under § 2H1.1.
      Therefore, his sentence is AFFIRMED.




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