     Case: 14-10742      Document: 00512955496         Page: 1    Date Filed: 03/03/2015




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


                                    No. 14-10742                              FILED
                                  Summary Calendar
                                                                          March 3, 2015
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MEDARDO DE JESUS MARROQUIN-SALAZAR, also known as Medaro de
Jesus Marroquin-Salazar,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-8-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Medardo De Jesus Marroquin-Salazar (Marroquin) appeals the above-
guidelines sentence imposed following his guilty plea conviction for illegal
reentry following deportation in violation of 8 U.S.C. § 1326. He argues that
the district court procedurally erred when it relied on conduct underlying an
offense for which he was acquitted when imposing his sentence. Although



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10742    Document: 00512955496     Page: 2   Date Filed: 03/03/2015


                                 No. 14-10742

Marroquin admits that an acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, he argues that the
information in the presentence report (PSR) regarding the acquitted charge
was unreliable because it was based solely on a police report and the district
court should not have relied on it when sentencing him.
      “Generally, a PSR ‘bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual determinations.’”
United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United
States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010)). The district court could
therefore “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.” Id. This court has previously
held that “the district court may properly find sufficient reliability on a
presentence investigation report which is based on the results of a police
investigation.”   United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991).
Because the PSR was based on an offense report that detailed police interviews
with the victim and witnesses, the PSR had a sufficient indicia of reliability.
See id.   Marroquin’s alternative argument that the acquittal constitutes
competent rebuttal evidence that shows that the police report was unreliable
is unpersuasive; an acquittal means only that the State of California failed to
prove an essential element of the offense beyond a reasonable doubt and does
not necessarily undermine the reliability of the police report. See United States
v. Watts, 519 U.S. 148, 155 (1997). Thus, the district court did not clearly err
in relying on the PSR’s recitation of facts regarding the acquitted charge. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); Harris,
702 F.3d at 230. The judgment of the district court is AFFIRMED.



                                       2
