     Case: 10-10983     Document: 00511638783         Page: 1     Date Filed: 10/20/2011




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

                                                                            FILED
                                                                         October 20, 2011
                                     No. 10-10983
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADRIAN JIMINEZ-GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-68-1


Before BENAVIDES, CLEMENT, and STEWART, Circuit Judges.
PER CURIAM:*
        Adrian Jiminez-Garcia appeals the sentence imposed following his guilty
plea to bank robbery in violation of 18 U.S.C. § 2113. He contends the district
court erred by increasing his base offense level by two levels for obstruction of
justice, pursuant to Guideline § 3C1.1, and denying a reduction for acceptance
of responsibility, pursuant to Guideline § 3E1.1. He further argues that his
sentence is 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 10-10983

      Jiminez was assessed an obstruction of justice enhancement because the
evidence submitted to the court by way of a Second Addendum to the
Presentencing Report (PSR) and testimony of the investigative case agent
showed that Jiminez attempted to impede the investigation and prosecution of
the offense of conviction by threatening to kill co-offender Alejandro Holguin
(Holguin) and his family if Holguin provided any information to the authorities
about Jiminez’s involvement in a bank robbery and to harm co-offender Gerardo
Castro (Castro) and his mother if Castro talked about Jiminez’s involvement
with a bank robbery. The district court’s determination that Jiminez obstructed
justice is a factual finding reviewed only for clear error. United States v. Juarez-
Duarte, 513 F.3d 204, 208 (5th Cir. 2008). “There is no clear error if the district
court’s finding is plausible in light of the record as a whole.” Id.
      At sentencing, the district court may consider any relevant evidence,
provided that the information has “sufficient indicia of reliability to support its
probable accuracy.” United States v. Betancourt, 422 F.3d 240, 247 (5th Cir.
2005) (internal quotation marks and citation omitted). Presentence reports are
generally sufficiently reliable to support a district court’s factual finding. United
States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). “If information is presented to
the sentencing judge with which the defendant would take issue, the defendant
bears the burden of demonstrating that the information cannot be relied upon
because it is materially untrue, inaccurate or unreliable.” United States v.
Angulo, 927 F.2d 202, 205 (5th Cir. 1991); United States v. Ford, 558 F.3d 371,
376-77 (5th Cir. 2009).
      As he did in the district court, Jiminez maintains that, because Holguin
and Castro are not credible, their statements regarding the alleged threats are
unreliable and should not be used to support an obstruction of justice
enhancement. Jiminez’s allegations as to the credibility, or lack thereof, of
Holguin and Castro do not satisfy his burden of demonstrating that the
information the district court relied on is materially untrue, inaccurate, or

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                                  No. 10-10983

unreliable. Jiminez did not testify at his sentencing, nor did he present any
evidence to rebut the facts presented in the Second Addendum to the PSR or the
case agent’s testimony. Therefore, he has not shown that the district court erred
in increasing his offense level for obstruction of justice. See United States v.
Moody, 564 F.3d 754, 760 & n.6 (5th Cir. 2009); United States v. Ocana, 204 F.3d
585, 593 (5th Cir. 2000); Ford, 558 F.3d at 377.
      Jiminez also argues that the district court erred when it denied him a
reduction for acceptance of responsibility pursuant to Guideline § 3E1.1. Section
3E1.1(a) directs the sentencing court to reduce a defendant’s offense level “[i]f
the defendant clearly demonstrates acceptance of responsibility for his offense.”
§ 3E1.1(a).    However, when the defendant’s conduct has resulted in an
obstruction of justice enhancement, as here, the enhancement for obstruction of
justice ordinarily “indicates that the defendant has not accepted responsibility
for his criminal conduct.” Juarez-Duarte, 513 F.3d at 211 (quoting § 3E1.1,
comment. (n.4)). Only in “extraordinary cases” will both adjustments apply.
§ 3E1.1, comment. (n.4). The defendant bears the burden of proving entitlement
to the reduction, United States v. Thomas, 120 F.3d 564, 574-75 (5th Cir. 1997),
and the denial of credit for acceptance of responsibility will be affirmed “unless
it is without foundation.” Juarez-Duarte, 513 F.3d at 211.
      Jiminez asserts that, because the conduct on which the obstruction
enhancement was based (the threats made to Holguin and Castro) occurred
before he was arrested, the district court should focus on his actions after his
arrest – he clearly accepted responsibility for his offense; he pleaded guilty early
in the proceedings; he debriefed with the case agent; and he stipulated to the
accuracy of the PSR. Jiminez’s contentions do not sustain his burden of showing
entitlement to an acceptance of responsibility adjustment. Jiminez does not
argue and the record does not support that this case is an extraordinary case
where an adjustment for obstruction of justice and acceptance of responsibility
should apply. Accordingly, Jiminez has not shown that the district court’s

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refusal to adjust his offense level for acceptance of responsibility was “without
foundation.” See United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002);
Juarez-Duarte, 513 F.3d at 211; § 3E1.1, comment. (n.4).
      Jiminez further argues that his non-guidelines sentence is substantively
unreasonable. In particular, Jiminez asserts that the sentence imposed is
greater than necessary to achieve the goals of 18 U.S.C. § 3553(a), that the
district court failed to consider all information and arguments offered in
mitigation of his punishment, and that there is a disparity between his sentence
and the sentences of his co-defendants.
      Appellate courts review sentences for reasonableness, applying an abuse
of discretion standard of review. See Gall v. United States, 552 U.S. 38, 50-51
(2007). The court of appeals first inquires whether the district court committed
procedural error. Id. at 51. If the sentence imposed is procedurally sound, the
reviewing court then will consider whether the sentence is substantive
reasonable. Id.
      At Jiminez’s sentencing, after considering the § 3553(a) factors, the district
court determined that an appropriate sentence for Jiminez was 240 months of
imprisonment, which was the statutory maximum.              This was an upward
variance from the advisory guidelines sentencing range of 151 to 188 months.
When imposing this sentence, the district court specifically noted that Jiminez
committed six bank robberies, but his advisory sentencing guidelines range only
considered two of the robberies. The district court also commented on the
extreme nature and circumstances of the offense and on Jiminez’s history and
characteristics, observing Jiminez’s threats against Holguin and Castro. The
district court stated that an upward variance would reflect the seriousness of the
offense, promote respect for the law, afford adequate deterrence, and protect the
public from further crimes of the defendant. The district court considered
Jiminez’s arguments, the facts of the case, and the appropriate statutory
sentencing factors before imposing Jiminez’s sentence. Jiminez’s disagreement

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with the district court’s assessment of the factors is insufficient to establish that
the district court abused its discretion. See Gall, 552 U.S. at 51.
      Regarding the § 3553(a)(6)’s sentencing disparity argument, Jiminez has
not shown that there is an unwarranted sentencing disparity between himself
and any of his co-offenders or himself and any other similarly situated convicted
bank robber. Moreover, as for the deviation in this case, although it was
significant, this court has affirmed similar deviations. See, e.g., United States
v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010) (affirming a 216-month sentence
when the applicable guidelines range was 46 to 57 months), cert. denied, 131 S.
Ct. 997 (2011); United States v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008)
(affirming concurrent terms of 120 months and 180 months of imprisonment
from a range of 41 to 51 months); United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir. 2008) (affirming a 72-month sentence when the upper end of
the guidelines range was 30 months); United States v. Jones, 444 F.3d 430, 433,
441-42 (5th Cir. 2006) (affirming 120-month sentence from a guidelines range
of 46 to 57 months); Smith, 440 F.3d at 705-06, 708-10 (upholding a 60-month
sentence when the upper end of the guidelines range was 27 months); United
States v. Smith, 417 F.3d 483, 492 & n.40 (5th Cir. 2005) (affirming 120-month
sentence from a guideline maximum of 41 months).
      Lastly, to the extent that Jiminez argues that the district court could not
rely on factors already encompassed within the guidelines to support a
non-guidelines sentence, this argument is foreclosed. The district court is not
precluded from imposing a variance based on factors that the Guidelines had
already taken into account. See Brantley, 537 F.3d at 350.
      AFFIRMED.




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