Case: 20-40043        Document: 00515540338             Page: 1      Date Filed: 08/25/2020




             United States Court of Appeals
                  for the Fifth Circuit
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 20-40043
                                                                              August 25, 2020
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
 United States of America,

                                                                   Plaintiff—Appellee,

                                          versus

 Kevin Omar Pacheco-Flores,

                                                               Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:19-CR-1643-1


 Before Haynes, Willett, and HO, Circuit Judges.
 Per Curiam:*
         Kevin Omar Pacheco-Flores pleaded guilty to illegal reentry after
 deportation, in violation of 8 U.S.C. § 1326(a), and he was sentenced above
 the advisory guidelines range to 15 months of imprisonment. On appeal,
 Pacheco-Flores argues that his sentence was substantively unreasonable


         *
          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 not be published and is not precedent except under the limited circumstances set forth in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: 20-40043      Document: 00515540338         Page: 2     Date Filed: 08/25/2020




                                  No. 20-40043


 because the district court gave undue weight to unadjudicated allegations of
 prior felony offenses described in the presentence report, which he contends
 lacked sufficient indicia of reliability. Additionally, he contends that his 15-
 month sentence was substantively unreasonable because it was more than
 double the advisory guidelines range of one to seven months of
 imprisonment, because the Government did not recommend a sentence
 above the guidelines range, and because he had been previously convicted of
 only a misdemeanor offense of driving under the influence.
        We review the substantive reasonableness of Pacheco-Flores’s
 sentence under a deferential abuse of discretion standard. See Gall v. United
 States, 552 U.S. 38, 51 (2007). A non-guidelines sentence will be found
 substantively unreasonable when it “(1) does not account for a factor that
 should have received significant weight, (2) gives significant weight to an
 irrelevant or improper factor, or (3) represents a clear error of judgment in
 balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
 (5th Cir. 2006).
        A presentence report generally bears sufficient indicia of reliability to
 be considered by the sentencing judge in making factual determinations.
 United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). In such a case, the
 defendant has the burden of presenting rebuttal evidence to show that the
 information is “materially untrue, inaccurate or unreliable.” Id. (internal
 quotation marks and citation omitted). “It is well-established that prior
 criminal conduct not resulting in a conviction may be considered by the
 sentencing judge” in a determination whether an upward variance under 18
 U.S.C. § 3553(a) is warranted. United States v. Lopez-Velasquez, 526 F.3d
 804, 807 (5th Cir. 2008).
        In light of the details provided in the presentence report about
 Pacheco-Flores’s prior unadjudicated offenses and in light of Pacheco-




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                                 No. 20-40043


 Flores’s failure to rebut that information, Pacheco-Flores has not shown that
 the district court imposed a substantively unreasonable sentence when it
 deemed the descriptions of the arrests to be reliable or when it gave them
 weight. See Harris, 702 F.3d at 230; Smith, 440 F.3d at 708. Additionally,
 he has not shown that the length of his above-guidelines sentence was
 substantively unreasonable. See Lopez-Velasquez, 526 F.3d at 805-07.
        AFFIRMED.




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