     Case: 18-10928   Document: 00515053711        Page: 1   Date Filed: 07/29/2019




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


                                    No. 18-10928                       FILED
                                                                   July 29, 2019
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff - Appellee

v.

CORY DALE FIELDS,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Cory Dale Fields pleaded guilty to possessing a firearm as a felon. The
district court imposed an upward variance at sentencing, relying in part on the
presentence report’s description of two instances where Fields was arrested
and charged with offenses involving injury to a child. In both cases, as the PSR
noted, the charges were ultimately no-billed by Texas grand juries. Fields
argues that in light of the no-bills, the PSR’s description of the conduct
underpinning his prior arrests was insufficiently reliable for the district court
to take the arrests into account at sentencing. We disagree, and therefore
affirm.
    Case: 18-10928      Document: 00515053711   Page: 2   Date Filed: 07/29/2019



                                 No. 18-10928
                                        I
      The presentence report described an extensive criminal history,
beginning when Fields was eighteen and continuing for twenty years. Several
of the convictions involved lying to or attempting to evade law enforcement.
The PSR also listed several instances of “other criminal conduct.” As relevant
here, it included that Fields was arrested in 2001 and charged with “Injury to
a Child/Elderly/Disabled Person with Intent of Bodily Injury” based on a
domestic violence incident. Describing the police offense report, the PSR stated
that officers were called to Fields’s residence, where Fields’s then-girlfriend
and her son told them that after Fields found the child eating candy while in
time-out, he “pushed him by the shoulders and kicked him in the buttocks,
causing him to fall against a wall [and] causing him pain.” It also included
information on another arrest in 2005, which resulted in Fields’s being charged
with “Injury to a Child/Elderly/Disabled—Bodily Injury.” The offense report
for the 2005 arrest stated that officers were once again called to Fields’s
residence, where Fields’s girlfriend told them that Fields had yelled at her two
children for arguing, one of the children stood up for his brother, and Fields
pushed him “into a wall and onto the tile floor,” causing the child to scrape his
back and hit his head on the wall. In both cases, a Texas grand jury ultimately
no-billed the charge.
      The PSR calculated a total offense level of 17 with a criminal history
category of IV, yielding a Guidelines range of 37 to 46 months’ imprisonment.
It also suggested that Fields’s past criminal history might warrant an upward
departure or a variance. The district court notified Fields before sentencing
that it was considering a sentence above the Guidelines range.
      At sentencing, defense counsel argued that a sentence above the
Guidelines range was not warranted because Fields’s past convictions either
directly factored into his level IV criminal history categorization; were
                                       2
    Case: 18-10928    Document: 00515053711       Page: 3   Date Filed: 07/29/2019



                                  No. 18-10928
connected to offenses that factored into that categorization; or occurred
sufficiently long ago that they should not be considered at all. Counsel further
argued that there was “no violent history at all,” pointing out that while the
PSR noted certain arrests—including the 2001 and 2005 arrests for injury to a
child—that may have involved violent conduct, all charges resulting from those
arrests were no-billed by grand juries. It suggested that “in light of that [no-
bill] finding[, there was not] enough reliable information to conclude that [the
alleged conduct] occurred.”
      The district court described Fields’s criminal history as “very
disturbing,” though it acknowledged that “many of them are minor offenses.”
It explained that many of Fields’s past convictions were not factored into his
criminal history category, and more recent offenses reflected a troubling
pattern of drug offenses and failure to cooperate with law enforcement. Then,
it turned to conduct for which Fields had not been convicted—specifically, the
2001 and 2005 arrests involving injury to children. It stated:
                   The criminal record goes on for several pages in
            the Presentence Report after that, and for one reason
            or another you weren’t convicted of any of those
            offenses, but I can tell from the descriptions of the
            conduct you had engaged in that in some of those
            instances . . . . in fact, you did . . . commit the offense
            that you were charged with.
                   For example, in . . . paragraph 46, that goes back
            to when you were 22 years of age, and the offense that
            you were charged with was abusive conduct toward a
            child. I don’t know . . . all of the circumstances, but I
            do find from a preponderance of the evidence that you
            engaged in the conduct that’s described in the
            narrative part in paragraph 46.
                   Similarly, in paragraph 47, you were charged
            with injury to a child or elderly person or disabled
            person, and I can tell—that was no billed by a grand
            jury, but I can tell from the description of the offense

                                        3
     Case: 18-10928       Document: 00515053711         Page: 4    Date Filed: 07/29/2019



                                      No. 18-10928
              report in paragraph 47 that you engaged in the
              conduct described there . . . .

Based on Fields’s history and characteristics, the need to promote respect for
the law, and the nature of the sentencing offense, the court concluded that a
sentence above the top of the Guidelines range of 46 months was warranted
under 18 U.S.C. § 3553(a). It sentenced Fields to 60 months’ imprisonment,
supervised release of 3 years, and a special assessment of $100. Defense
counsel objected to the sentence as procedurally and substantively
unreasonable for the reasons argued throughout the sentencing hearing.
       Fields now appeals. He solely argues that the PSR’s description of the
conduct underlying the 2001 and 2005 no-billed arrests was insufficiently
reliable for the district court to account for those arrests at sentencing.
                                             II
       A district court may impose a sentence outside of the Guidelines range
if, after considering the factors identified in 18 U.S.C. § 3553(a) and making
an “individualized assessment based on the facts presented,” the court
determines that an outside-Guidelines sentence is warranted. 1 It is “well-
established that prior criminal conduct not resulting in a conviction may be
considered by the sentencing judge,” 2 as long as the sentencing court finds by
a preponderance that the conduct occurred. 3 Where, as here, a defendant
objects to the sentence’s procedural reasonableness at sentencing, this court
reviews claims of procedural error de novo and the district court’s factual
findings for clear error. 4




       1See Gall v. United States, 552 U.S. 38, 49–51 (2007).
       2See United States v. Fuentes, 775 F.3d 213, 219 (5th Cir. 2014) (per curiam) (quoting
United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (per curiam)).
      3 See United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (per curiam).
      4 See id. at 229.

                                             4
    Case: 18-10928       Document: 00515053711           Page: 5   Date Filed: 07/29/2019



                                     No. 18-10928
      “[D]istrict courts may consider any information which bears sufficient
indicia of reliability to support its probable accuracy.” 5 The requirement that
the information bear sufficient indicia of reliability means that a sentencing
court may not rely on a defendant’s “bare arrest record.” 6 It also means that
even when a PSR provides a more detailed factual recitation of the conduct
underlying an arrest, if that recitation lacks sufficient indicia of reliability then
“it is error for the district court to consider it at sentencing—regardless of
whether the defendant objects or offers rebuttal evidence.” 7 If the factual
recitation possesses sufficient indicia of reliability, conversely, the sentencing
court may consider it unless the defendant objects and offers “rebuttal evidence
challenging the truthfulness, accuracy, or reliability of the evidence supporting
the factual recitation in the PSR.” 8 While “[m]ere objections . . . are generally
insufficient,” an objection “may sufficiently alert the district court to questions
regarding the reliability of the evidentiary basis for the facts contained in the
PSR.” 9
                                           III
      The sentencing court here did not rely on a bare arrest record. Instead,
it looked to the PSR’s description of two detailed offense reports explaining
when, where, and how Fields allegedly engaged in abusive conduct toward his
girlfriend’s children, and found by a preponderance that he engaged in the
conduct described. Our caselaw makes clear that generally, a sentencing court
“may properly find sufficient reliability on a presentence investigation report
which is based on the results of a police investigation,” especially where the




      5 Id. at 230 (internal quotation marks omitted).
      6 See id. at 229–30; Fuentes, 775 F.3d at 219.
      7 Harris, 702 F.3d at 231.
      8 Id.
      9 Id. at 230 & n.3.

                                            5
     Case: 18-10928       Document: 00515053711          Page: 6     Date Filed: 07/29/2019



                                       No. 18-10928
offense report is detailed and includes information gathered from interviews
with the victim and any other witnesses. 10
       Fields argues that the PSR’s factual recitations of the conduct
underpinning his 2001 and 2005 arrests nonetheless lacked sufficient indicia
of reliability because grand juries no-billed the charges resulting from those
arrests. We disagree.
                                              A
       It is settled that a sentencing court may rely on the PSR’s factual
recitation of the conduct underlying an arrest even where the defendant was
ultimately acquitted of all charges stemming from that arrest. 11 The Supreme
Court has explained that because a criminal conviction requires proof beyond
a reasonable doubt, “acquittal on criminal charges does not prove that the
defendant is innocent; it merely proves the existence of a reasonable doubt as
to his guilt.” 12 Further, “it is impossible to know exactly why a jury found a
defendant not guilty on a certain charge,” since an acquittal “can only be an
acknowledgment that the government failed to prove an essential element of
the offense beyond a reasonable doubt.” 13 Taken together, these principles
yield the conclusions that “the jury cannot be said to have ‘necessarily rejected’
any facts when it returns a general verdict of not guilty,” and “a jury’s verdict
of acquittal does not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence.” 14



       10 See Fuentes, 775 F.3d at 220 (quoting United States v. Vela, 927 F.2d 197, 201 (5th
Cir. 1991)).
       11 See, e.g., United States v. Oti, 872 F.3d 678, 700 n.18 (5th Cir. 2017); United States

v. Melancon, 662 F.3d 708, 713–14 (5th Cir. 2011).
       12 United States v. Watts, 519 U.S. 148, 155 (1997) (per curiam) (quoting United States

v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984)).
       13 Id.
       14 Id. at 155–56.

                                               6
    Case: 18-10928         Document: 00515053711            Page: 7   Date Filed: 07/29/2019



                                        No. 18-10928
      Fields argues that a no-bill is different from an acquittal because it
involves a lower standard of proof. The crux of his argument is that the grand
jury no-bills “provided reason to doubt the reliability of the allegations”
because “a grand jury’s return of a no-bill . . . serves as strong evidence that it
found the evidence failed to even satisfy the probable cause standard, much
less the far higher standard of preponderance of the evidence.” In effect, he
argues, it makes sense that an acquittal would not preclude a district court
from finding that the conduct underlying the acquitted charge had occurred—
because the “beyond a reasonable doubt” standard for a conviction is higher
than the “preponderance” standard for factfinding at sentencing. But where
the jury was faced with a lower standard of proof than preponderance of the
evidence, Fields argues, its decision to no-bill should preclude later finding by
a preponderance that the conduct occurred.
                                               B
      This requires us to determine what exactly a Texas grand jury’s no-bill
establishes. Does a no-bill, as Fields argues, represent the grand jury’s
conclusion that there was no probable cause to find at least some of the facts
underlying the charge? Or does it, as the government argues, signify only that
the specific evidence before the grand jury did not convince it to formally
charge the defendant with a specific offense? Texas law suggests the latter.
      While we have not yet addressed this issue in a precedential opinion, a
panel of our court discussed it at length in an unpublished decision in United
States v. Gipson. 15 As here, after the defendant in Gipson pleaded guilty to
being a felon in possession of a firearm, the district court imposed an above-
Guidelines sentence— referencing three prior offenses for which Gipson was
charged but not convicted, including an aggravated kidnapping charge that a


      15   746 F. App’x 364 (5th Cir. 2018) (per curiam).
                                               7
    Case: 18-10928      Document: 00515053711         Page: 8    Date Filed: 07/29/2019



                                     No. 18-10928
Texas grand jury had no-billed. 16 The PSR described witness testimony placing
Gipson at the scene of the kidnapping and accurately identifying his tattoos,
though it also noted the same witness’s failure to identify Gipson in a photo
lineup. 17 Over defense counsel’s objection, and despite the grand jury no-bill,
the district court concluded that it could “tell from a preponderance of the
evidence that [Gipson] committed a significant part of the activities that he
was charged with then.” 18
      We rejected Gipson’s argument that the grand jury no-bill stripped the
PSR of sufficient indicia of reliability, 19 relying on a decision from the en banc
Texas Court of Criminal Appeals, Rachal v. State, which addressed whether a
trial court erred in admitting evidence during a capital punishment trial that
the defendant had previously been arrested and subsequently no-billed for a
fatal shooting. 20 While the defendant in Rachal did not dispute that he had
committed the extraneous homicide, he argued that the no-bill indicated that
the grand jury found the homicide to be “justifiable and lawful” and committed
in self-defense. 21 The CCA held that the defendant had overstated the no-bill’s
significance. “The [grand jury]’s no-bill of the [extraneous] homicide [did] not
mean it was justified, lawful, or in self-defense,” since the grand jury was
“without authority to make such findings; its authority and duty is limited to
inquiring into criminal accusations and determining whether evidence exists
to formally charge a person with an offense.” 22 Because a no-bill “is merely a
finding that the specific evidence brought before the particular [grand jury] did




      16 Id. at 365.
      17 Id. at 366.
      18 Id. at 365.
      19 See id. at 366.
      20 Rachal v. State, 917 S.W.2d 799, 806–07 (Tex. Crim. App. 1996) (en banc).
      21 See id. at 807.
      22 Id. (citing Tex. Code Crim. P. arts. 20.09, 20.19, and 21.01).

                                            8
     Case: 18-10928        Document: 00515053711          Page: 9     Date Filed: 07/29/2019



                                        No. 18-10928
not convince them to formally charge the accused with the offense alleged,” the
CCA concluded that evidence of the extraneous homicide could still be
introduced at the punishment phase as long as it met the relevant evidentiary
standard of being proven beyond a reasonable doubt, relevant, and more
probative than prejudicial. 23 Texas courts have repeatedly followed Rachal in
cases involving the admission of extraneous offenses as “bad acts” evidence in
non-capital cases, 24 which Texas evidence law also requires to be capable of
being proven beyond a reasonable doubt. 25
       Reasoning from Rachal, Gipson held that “[a] grand jury’s no-bill is a
decision not to charge the accused with a particular offense, not a judgment
that no unlawful conduct whatsoever occurred.” 26 As a result, the grand jury
could have rejected the charge of “aggravated kidnapping” without rejecting
the prosecution’s factual claims—and, consistent with this, the sentencing
court could coherently conclude by a preponderance that Gipson “committed a
significant part of the activities that he was charged with then.” 27
       Acknowledging Gipson, Fields urges us to reject it as nonbinding and to
instead conclude that a no-bill bears more expansive significance. Ultimately,
however, Fields gives us no reason to doubt Rachal’s characterization of a no-
bill as nothing more than the decision by a particular grand jury that the



       23  Id. & n.4. The opinion clarifies that “clearly proven,” under Texas law, means
“beyond a reasonable doubt.” Id. n.4.
        24 See Harris v. State, 572 S.W.3d 325, 335–36 (Tex. App.—Austin 2019) (affirming

the trial court’s decision to exclude evidence that a grand jury had no-billed an assault charge,
while allowing admission of evidence of the assault to challenge testimony that the defendant
was a peaceful, non-confrontational person); Bass v. State, Nos. 14-05-00865-CR, 14-05-
00866-CR, 2009 WL 3839003, at *4 (Tex. App.—Houston [14th Dist.] June 18, 2009)
(affirming exclusion of evidence of a grand jury no-bill).
        25 See Harrell v. State, 884 S.W.2d 154, 161 (Tex. Crim. App. 1994) (en banc) (holding

that for evidence of extraneous offenses to be admitted, the court must determine that a jury
could find beyond a reasonable doubt that the defendant committed the offenses).
        26 Gipson, 746 F. App’x at 366.
        27 Id. (emphasis added).

                                               9
    Case: 18-10928        Document: 00515053711           Page: 10     Date Filed: 07/29/2019



                                        No. 18-10928
specific evidence before it did not convince it to charge the defendant with an
offense. He points to the fact that the Texas Code of Criminal Procedure
authorizes a grand jury to “inquire into all offenses liable to indictment of
which any member may have knowledge, or of which they shall be informed by
the attorney representing the State, or any other credible person.” 28 He also
cites a Texas intermediate appellate case for the suggestion that because a
grand jury returns a true bill when it “determines that there is probable cause
to believe that the accused committed the offense,” 29 a no-bill at least provides
affirmative evidence that there was no probable cause to believe that any
offense occurred. 30 But these arguments reveal the logical leap that we would
have to undergo to conclude that a no-bill on a given charge renders unreliable
an otherwise sufficient factual description of events underpinning that charge.
While the grand jury might return a no-bill because it found no probable cause
to conclude that the events occurred as described, it also might return a no-bill
as a function of the evidence and argument presented by the prosecution, or
based on its conclusion that the facts were a poor fit for the particular offense
charged. 31 By itself, the no-bill cannot transform a factual recitation with
sufficient indicia of reliability into one that lacks such indicia. 32



       28  Tex. Code Crim. P. art. 20.09. Fields argues that it “strains credulity to presume
that a district court had more information before it than the grand jury charged with
‘inquiring into all offenses’ of which it had knowledge.”
        29 Harris Cty. Dist. Atty’s Office v. R.R.R., 928 S.W.2d 260, 264 (Tex. App.—Houston

[14th Dist.] 1996).
        30 See id. (observing that “[t]he initial grand jury’s refusal to indict strongly suggests

that probable cause was missing when the contradictory evidence was presented,” but also
relying on the prosecutor’s decision not to request an indictment a third time).
        31 Indeed, Fields’s argument that the grand juries could have found that he was

entitled to a “reasonable discipline” defense helps prove the point. If the grand juries
potentially no-billed the offenses because they concluded Fields had defenses to both, as
Fields argues, then the no-bills did not necessarily reject any of the underlying facts described
in the incident reports.
        32 We note that Gipson drew a dissent. While the dissent implicitly reached a different

conclusion about the meaning of a Texas grand jury’s no-bill, it also focused on the fact that
                                               10
    Case: 18-10928        Document: 00515053711           Page: 11     Date Filed: 07/29/2019



                                        No. 18-10928
                                               C
       One point of clarification is necessary. Gipson emphasized that the
district court did not find that the defendant had committed the offense of
aggravated kidnapping, but rather found by a preponderance that he had
committed “a significant part of the activities” with which he was charged. 33
Here too, although the district court initially stated that it could “tell from the
descriptions of the conduct [Field] had engaged in that in some of those
instances . . . [he did] commit the offense that [he] was charged with,” it then
went on to find by a preponderance that Fields “engaged in the conduct”
described in the PSR in relation to the 2001 and 2005 arrests. This case
therefore does not require us to address whether a grand jury no-bill precludes
a sentencing court’s ability to find by a preponderance that the defendant
committed the particular no-billed offense, and neither party asks us to do so.
The district court relied on sufficiently reliable evidence to find that Fields had
committed the underlying activities and based the upward variance in part
upon those activities. We can end our inquiry there. 34
                                               IV
       We affirm the sentence.




in Gipson, the PSR included the fact that the key witness had failed to identify Gipson in a
photo lineup—which may have explained why the grand jury no-billed the aggravated
kidnapping offense. See Gipson, 746 F. App’x at 367–70 (Higginson, J., dissenting). As no
similar exculpatory information was present in the PSR’s description of the conduct
underpinning Fields’s 2001 and 2005 arrests, we do not consider whether such information
should undercut otherwise sufficient indicia of reliability.
        33 Id. at 366–67 (majority op.).
        34 Fields does not contend that if the district court properly relied on the PSR’s factual

recitations of the conduct underpinning his 2001 and 2005 arrests, it otherwise erred in
imposing an upward variance.
                                               11
