     Case: 13-20346       Document: 00512724431         Page: 1     Date Filed: 08/06/2014




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

                                                                                       FILED
                                                                                   August 6, 2014
                                     No. 13-20346                                   Lyle W. Cayce
                                   Summary Calendar                                      Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CATALINO NIETO-NANEZ, also known as Bartolo Reynoso, also known as
Bartoloo Reynosa, also known as Catalino Nieto, also known as Bartolo
Remoso, also known as Bartoloo Remosa, also known as Catalino Y. Nieto, also
known as Catalino Nieto Nanez, also known as Catalino Yanez Nieto,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-778-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Catalino Nieto-Nanez pleaded guilty to one count of illegal reentry
following removal subsequent to a conviction of a felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(1).         The district court sentenced him to 26 months’
imprisonment. In reaching this sentence, the court departed upwardly from


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-20346      Document: 00512724431     Page: 2   Date Filed: 08/06/2014


                                   No. 13-20346

the applicable advisory Guidelines-sentencing range by one criminal history
level, after determining Nieto’s criminal-history category was under-
represented in the light of his numerous entries, reentries, and deportations
that did not result in criminal convictions.
      Nieto contends the court erred in both departing upwardly pursuant to
U.S.S.G. § 4A1.3 (policy statement on departures based on inadequacy of
criminal history category) and failing to provide its reasons for the departure.
He asserts the immigration records relied upon by the probation officer in
creating the Presentence Investigation Report (PSR) were likely unreliable
because they reflected Nieto had entered the United States on the date of his
birth and because specific dates of entry were not given for some of the alleged
entries.   Nieto contends that, under § 4A1.3(a)(2)(E) (prior similar adult
criminal conduct not resulting in criminal conviction), the district court could
not consider illegal entries made before he reached 18 years old because those
entries did not constitute adult criminal conduct. Additionally, Nieto contends
the court could not consider five reentries as “other adult criminal conduct”
because the probation officer did not specifically refer to the reentries occurring
after his first deportation as “illegal”.
      In district court, however, Nieto did not challenge the court’s decision to
depart upwardly; therefore, our review is for plain error only. See, e.g., United
States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). Under that
standard, Nieto must show a forfeited plain (clear or obvious) error that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he shows such reversible plain error, we have the discretion to
correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. Id.




                                            2
    Case: 13-20346     Document: 00512724431     Page: 3   Date Filed: 08/06/2014


                                  No. 13-20346

        According to the PSR, Nieto illegally entered the United States at least
seven times as an adult, and he was deported seven times between 2005 and
2011.    The district court was entitled to rely on the information in the
PSR because Nieto had the burden to rebut the PSR but failed to do so. See
United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013) (“The defendant
bears the burden of showing that the information in the PSR relied on by the
district court is materially untrue.”) (citation and internal quotation marks
omitted). Nieto has not shown either that the court’s consideration of his prior
entries and reentries or that its explanation for why it imposed the departure
constituted clear or obvious error.
        AFFIRMED.




                                        3
