     Case: 10-30934     Document: 00511670502         Page: 1     Date Filed: 11/18/2011




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

                                                                            FILED
                                                                        November 18, 2011

                                       No. 10-30934                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiffs-Appellee
v.

SANDY L. DAVIS

                                                  Defendants-Appellant



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:08-CR-88


Before GARZA,CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
        Sandy L. Davis was charged in an indictment with three counts of
distributing 50 grams or more of cocaine base. Pursuant to a written plea
agreement, Davis pleaded guilty to the charges. In the plea agreement, Davis
waived his right to appeal his conviction and sentence except to challenge any
sentence above the Guidelines sentence range. After being sentenced by the
district court to a term above the Guidelines range, Davis appealed the district
court’s upward departure. We AFFIRM.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                        FACTS AND PROCEEDINGS
      In the presentence report (PSR), the probation officer determined that
Davis’s offense involved 185 grams of cocaine base and that Davis’s base offense
level was 32. She applied a two-level safety valve reduction and a three-level
reduction for acceptance of responsibility, and calculated Davis’s total offense
level of 27. In determining Davis’s criminal history category, the probation
officer reported that Davis had one prior conviction for driving without a driver’s
license that counted for one criminal history point. Because that was Davis’s
only prior conviction that counted for criminal history points, she determined
that Davis’s criminal history category was I.
      In addition to his one prior conviction, the probation officer also reported
that Davis had prior juvenile adjudications for aggravated battery and
attempted manslaughter and prior adult convictions for possessing an open
container of alcohol in a motor vehicle, urinating in public, and illegally
possessing a firearm in a public park, but determined that these did not count
for criminal history points. The officer noted that Davis had been arrested, but
not convicted, for the following offenses: drug traffic loitering; possession of
marijuana; illegal carrying of weapons; aggravated battery; aggravated battery
with illegal use of weapons; two counts of attempted murder; unauthorized entry
of an inhabited dwelling; simple battery; operating a vehicle while intoxicated;
reckless driving; driving with an expired driver’s license; illegal use of weapons
or dangerous instrumentalities; production, manufacture, distribution, or
possession of a schedule II controlled dangerous substance; illegal carrying of a
weapon with a controlled dangerous substance; prohibited acts; possession of
drug paraphernalia; and seven counts of contempt of court for failure to appear.
The PSR contained details of these offenses that were gathered from five police
reports and three DEA investigation reports. The PSR also stated that Davis
had 14 pending charges for traffic violations in addition to other counts including

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for attempted second degree murder, illegal carrying of weapons, and illegal use
of weapons or dangerous instrumentalities stemming from an incident—the
latter pending charges all stemming from an incident where Davis allegedly
fired shots at a person with whom he was fighting as well as at police officers
who arrived at the scene. The probation officer further noted that Davis was
arrested once as a juvenile for being ungovernable and once for being
ungovernable, being a runaway, and truancy.
      The probation officer calculated that Davis’s Guidelines sentence range
was 70-87 months of imprisonment and three to five years of supervised release.
She noted that Davis’s statutory minimum sentence was 120 months of
imprisonment, but that this was inapplicable because Davis met the conditions
for the application of the safety valve under 18 U.S.C. § 3553(f). She stated that
Davis’s criminal history was a possible ground for an upward departure because
this category could under-represent his criminal history and the likelihood that
Davis would commit other crimes.
      Neither Davis nor the Government objected to the initial PSR. However,
after the PSR was issued, the probation officer learned that Davis had been
caught in possession of a cell phone twice while incarcerated awaiting sentencing
and that Davis refused to inform authorities how he obtained the cell phones.
Due to this behavior, the probation officer determined that Davis was not
eligible for the three-level reduction for acceptance of responsibility. Without
a reduction for acceptance of responsibility, she calculated that Davis’s
Guidelines sentence range was 97-121 months of imprisonment.
      Both Davis and the Government objected to the Supplemental Addendum
to the PSR, with Davis arguing that he should receive a reduction for acceptance
of responsibility and the Government arguing that Davis should not receive a
safety valve reduction. The probation officer agreed with the Government’s
objection, and rejected Davis’s objection. She recalculated Davis’s Guidelines

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sentence range without the safety valve reduction, which resulted in a sentence
range of 121-151 months of imprisonment.
      The district court ruled that Davis was not eligible for a safety valve
reduction because he had not truthfully provided the Government all the
information he had concerning the offense. The PSR indicated that Davis had
at least eight adult arrests involving firearms and had pending charges for
attempted murder.     The court further noted that Davis had arrests for drug
trafficking and drug traffic loitering and that Davis’s possession of cell phones
while in jail showed that Davis had not changed. Having determined that
category I did not adequately represent Davis’s criminal history, the court
concluded that an upward departure to a criminal history category of III,
resulting in a Guidelines sentence range 151-188 months was warranted. Davis
objected that the upward departure was based upon accusations, not convictions.
According to the court, while Davis did not have many prior convictions, he had
“beaucoup arrests.” Davis then made a further objection, arguing that an
upward departure was not appropriate based solely upon Davis’s arrest record
without “additional meat behind” the arrests. The district court overruled the
objection, noting that the information concerning Davis’s prior arrests came from
law enforcement agencies that it found to be reliable. Davis was sentenced to
160 months of imprisonment and five years of supervised release on each count,
the sentences to run concurrently.
                                DISCUSSION
      This Court reviews a sentence for “reasonableness” and to determine
whether the district court abused its discretion. Gall v. United States, 552 U.S.
38, 46 (2007). The review of the departure for substantive reasonableness must
take into account the totality of the circumstances including the extent of any
variance from the Guidelines range. Id. at 51. There is no abuse of discretion if
the court’s reasons for the departure (1) advance the objectives set forth in 18

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U.S.C. § 3553(a), (2) are authorized by 18 U.S.C. § 3553(b), and (3) are justified
by the facts of the case. United States v. Saldana, 427 F.3d 298, 308 (5th Cir.
2005).
         In Williams, the Supreme Court held that it was improper to impose a
sentence above the Guidelines range when the departure was based on a factor
rejected by the Sentencing Commission. Williams v. United States, 502 U.S. 193,
200-01 (1992). The Guidelines provide that “[i]f reliable information indicates
that the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes, an upward departure may be warranted.”
U.S.S.G. § 4A1.3(a)(1). In considering whether to depart upward, the district
court may consider, inter alia: “[p]rior sentence(s) not used in computing the
criminal history category”; “[w]hether the defendant was pending trial or
sentencing on another charge at the time of the instant offense”; and “[p]rior
similar adult criminal conduct not resulting in a criminal conviction.”
§ 4A1.3(a)(2)(A), (D), & (E). “A prior arrest record itself shall not be considered
for purposes of an upward departure.” § 4A1.3(a)(3); see also United States v.
Jones, 444 F.3d 430, 434 (5th Cir. 2006) (determining that consideration of prior
arrests by a district court when sentencing constitutes plain error). An upward
departure based on arrests standing alone or the “mere fact of prior arrests” are
error, but arrests that are corroborated by other evidence in the record may be
considered. United States v. Williams, 620 F.3d 483, 493 n.9 (5th Cir. 2010).
      Davis argues that the district court erred because the upward departure
is based predominantly on his prior arrests. While we agree with his assertion
that the use of only the fact of a prior arrest runs contrary to our case law, we
disagree with his assertion that such case law is applicable here. We have
previously held that a PSR “generally bears sufficient indicia of reliability to be
considered as evidence by the sentencing judge in making factual

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                                  No. 10-30934

determinations.” United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). We
have also held that facts contained in a PSR are reliable when they are obtained
from law enforcement reports. United States v. Nava, 624 F.3d 226, 230-31 (5th
Cir. 2010).
      The record indicates that the PSR contained more than just the alleged
crimes for which Davis was arrested. The PSR contained summaries and factual
underpinnings for the pending charges and prior arrests which lend credibility
and support for a higher crime level than would a mere statement of arrest. The
district court relied on facts within the report when making the upward
departure and, except in the incident of his current attempted murder charge for
which the defendant claimed innocence, the defendant presented no evidence
that the facts contained in the PSR surrounding his prior arrests were untrue
or unfounded. See Nava, 624, F.3d at 231. The district court noted Jones’s
history of arrests, found the facts supporting the arrests to be credible, and
stated that it “had accepted the factual determinations.” S.E.R. 35. “The
defendant bears the burden of showing that the information in the PSR relied
on by the district court is materially untrue.” United States v. Valencia, 44 F.3d
269, 274 (5th Cir. 1995). Having failed to meet that burden, the district court
did not commit error in using the PSR and the facts surrounding his prior
arrests as a basis for the upward departure.
      Finally, we do not believe that the upward departure to 160 months for the
defendant was unreasonable. The PSR and surrounding facts of the arrests
indicate strongly that the criminal history category in the initial Guidelines
range vastly under represented Davis’s criminal past and his propensity for
crime both previously and going forward. Taking into account Davis’s criminal
history we find that the district court did not err in the upward departure from
the Guidelines range.



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                              CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.




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