                                                          [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                      MARCH 11, 2008
                                                    THOMAS K. KAHN
                              No. 07-12075
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                     D. C. Docket No. 05-20849-CR-JEM

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                   versus

ONELIO S. BAEZ,

                                                     Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (March 11, 2008)

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Onelio Baez appeals his sentence of 40 months of imprisonment for
conspiracy to commit healthcare fraud. 18 U.S.C. §§ 371, 1347. He argues that

the district court erred by considering conduct that gave rise to prior criminal

charges after the prosecution of those charges had been abandoned. We affirm.

      We review a defendant’s overall sentence for reasonableness, the legal

interpretations of the Sentencing Guidelines by the district court de novo, and

factual findings by the district court for clear error. United States v. Orisnord, 483

F.3d 1169, 1181 (11th Cir. 2007). Because Baez did not object to the inclusion of

his prior arrests in the presentence investigation report, did not object when the

district court explained that it would consider the arrests in fashioning his sentence,

and did not object when, after it announced the sentence, the district court gave

Baez a final opportunity to object, we review for plain error. Fed. R. Crim. P.

52(b); United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). We find no

plain or other error.

      After Baez pleaded guilty and agreed to cooperate with the government, the

district court determined that the advisory Sentencing Guidelines called for a range

of 33–41 months of imprisonment. The government moved, under section 5K1.1

of the Guidelines, for a downward departure. The district court explained that it

was “troubled” by “all sorts of warning flags.”

      Among the warning flags that troubled the district court were three prior



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arrests. Baez was arrested in 1994 for petty larceny, but the prosecution was

abandoned when he completed “pretrial intervention.” Baez was arrested in 1997

for insurance fraud, from which he received more than $37,000, but again the

prosecution was abandoned after Baez completed pretrial intervention. Baez was

arrested a third time in 1998 for unlawfully confining an 82-year-old mentally

dysfunctional man, but the prosecution was later abandoned.

      The district court said that if the government had not moved for a downward

departure, it would have imposed the statutory maximum sentence of 60 months.

The court instead imposed a sentence of 40 months of imprisonment. Before it

imposed that sentence, the court considered Baez’s cooperation with the

government, his history, his background, and the statutory factors for a criminal

sentence. 18 U.S.C. § 3553(a).

      Baez argues that the district court erred by considering the conduct that gave

rise to his prior arrest record, but we disagree. We have interpreted section 4A1.3

of the Guidelines, which permits an upward departure based on “prior similar adult

criminal conduct not resulting in a criminal conviction,” U.S.S.G. §

4A1.3(a)(2)(E), and explained that “an arrest record standing alone is not

sufficiently reliable to support a departure.” United States v. Williams, 989 F.2d

1137, 1142 (11th Cir. 1993); see also U.S.S.G. § 4A1.3(a)(3) (“A prior arrest



                                          3
record itself shall not be considered for purposes of an upward departure . . . .”).

An arrest record does not “stand alone” when it is supported by additional facts,

which would include reliable information in the presentence investigation report.

Williams, 989 F.2d at 1142. Baez’s presentence investigation report includes

detailed facts associated with his arrests, which Baez admitted by failing to object

to the report. Bennett, 472 F.3d at 833–34. The district court did not err when it

considered this information about Baez’s prior arrests.

      Baez’s sentence is AFFIRMED.




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