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

                                                                            FILED
                                                                           July 21, 2008

                                       No. 07-50761                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JORGE ALONSO ARROYOS-FERNANDEZ, also known as Jose
Arvizu-Lukin

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                         USDC No. 3:06-CR-01246-KC-3


Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Jorge Alonso Arroyos-Fernandez (“Arroyos”) appeals
the sentence imposed following his plea of guilty to one count of conspiracy to
possess marijuana with intent to distribute. Arroyos challenges two upward
sentence adjustments imposed by the district court.                 Finding no error in
Arroyos’s sentence, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-50761


                 I. FACTS AND PROCEDURAL HISTORY
      Arroyos was charged, along with his brother and another co-conspirator,
in a one-count superseding indictment, with conspiracy to possess with intent
to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(C).     Arroyos pleaded guilty without a plea
agreement.
      The Presentence Investigation Report (“PSR”) began with a base level of
twenty-four, subtracted three levels for acceptance of responsibility, and added
two levels for Arroyos’s role as a manager/superviser, pursuant to U.S.S.G.
§ 3B1.1(c). This resulted in a total offense level of 23. For criminal history, the
PSR applied one point for Arroyos’s 1991 state drug conviction and one point for
a 2006 federal misdemeanor fraud conviction, resulting in a criminal history
category of II. Combining these metrics, Arroyos’s Guidelines sentence range
was 51 to 63 months.
      Arroyos filed written objections to the manager/supervisor role
enhancement and the scoring of his 2006 fraud conviction, and he renewed these
objections at the sentencing hearing. The district court overruled Arroyos’s
objections and imposed a sentence of 60 months’ imprisonment plus 3 years of
supervised release and a $100 special assessment. Arroyos brought this timely
appeal.
      We have jurisdiction to hear a direct appeal of a final judgment in a
criminal case pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                               II. DISCUSSION
A.    Role Enhancement
      i.     Standard of Review
      We review a district court’s factual finding that a defendant was a
manager or supervisor under U.S.S.G. § 3B1.1(c) for clear error. United States

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v. Powell, 124 F.3d 655, 667 (5th Cir. 1997). Such a finding is not clearly
erroneous as long as it is plausible in light of the record as a whole. United
States v. Fullwood, 342 F.3d 409, 415 (5th Cir. 2003).
      ii.    Analysis
      The Sentencing Guidelines provide for a two-level upward adjustment
upon a finding that the defendant was “an organizer, leader, manager, or
supervisor” of the crime. U.S.S.G. § 3B1.1(c). To qualify for this adjustment,
      the defendant must have been the organizer, leader, manager, or
      supervisor of one or more other participants. An upward departure
      may be warranted, however, in the case of a defendant who did not
      organize, lead, manage, or supervise another participant, but who
      nevertheless exercised management responsibility over the
      property, assets, or activities of a criminal organization.

Id. at cmt. n.2. The sentencing court may consider any relevant information
“without regard to its admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia of reliability to support
its probable accuracy.” Id. § 6A1.3(a). We have held that, for sentencing
purposes, “even uncorroborated hearsay evidence is sufficiently reliable.” United
States v. West, 58 F.3d 133, 138 (5th Cir. 1995) (internal quotation marks
omitted). “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).
      In this case, the district court relied on statements by Arroyos’s co-
conspirators as support for the manager/supervisor adjustment. In a post-arrest
statement referenced in the PSR, one of Arroyos’s co-defendants, Alberto Bueno-
Gorena (“Bueno-Gorena”), stated that Arroyos was “the organization’s head in
Tucson, Arizona,” and that Arroyos and his wife were involved in laundering the
proceeds from the sale of illegal drugs and storing large amounts of currency in
their house. Another co-conspirator, Adimando Penaloza-Aguilar, stated in his


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post-arrest statement that Arroyos and Arroyos’s brother, Armando, were “high
level members of the organization” and that the marijuana seized in this offense
belonged to them.         The district court also took note of recorded phone
conversations in which co-conspirators referenced Arroyos, as well as the fact of
Arroyos’s 1991 conviction for possession of two kilos of cocaine, which suggests
that he had long been involved in the drug trade.1
       On appeal, Arroyos contends that the co-conspirators’ statements are
insufficient to support the district court’s role adjustment. For example, Arroyos
cites several of the co-conspirators’ descriptions of drug operations that make no
mention of Arroyos. However, these statements do not directly rebut the co-
conspirators’ own statements that Arroyos was a supervisor.2
       Arroyos also notes that the co-conspirator statements are unaccompanied
by corroborating evidence. For example, despite Bueno-Gorena’s allegations that
Arroyos and his wife laundered and stashed money, Arroyos asserts that after
a two-year federal investigation, the government has found no evidence to
support those allegations. However, corroborating evidence is not required. We
have explicitly held that the district court may rely on uncorroborated hearsay
evidence in sentencing. See West, 58 F.3d at 138.
       In light of other evidence, such as phone conversations and Arroyos’s prior
conviction, the district court chose to credit the co-conspirators’ statements. This
was largely a credibility determination, and we give deference to the credibility
determinations of the district court. United States v. Perez, 217 F.3d 323, 332
(5th Cir. 2000) (“We defer to the trial court’s superior position in making such
credibility calls.”).

       1
         According to the government, this large quantity of drugs indicates Arroyos was
“clearly not a street-level dealer.”
       2
        In fact, at sentencing, the government implied that Arroyos’s lack of involvement in
low-level trafficking operations actually supports a finding that he was a manager/supervisor.


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      Because Arroyos has failed to carry his burden of showing that these facts
lacked sufficient indicia of reliability, we cannot conclude that the district court
clearly erred in its factual finding supporting the role adjustment in this case.
The district court’s factual finding that Arroyos was a manager/supervisor is
plausible in light of the record as a whole, and therefore it is not clearly
erroneous. See Fullwood, 342 F.3d at 415.
B.    Criminal History Calculation
      i.       Standard of Review
      We review a district court’s application of the Sentencing Guidelines de
novo. United States v. Cerverizzo, 74 F.3d 629, 630 (5th Cir. 1996).
      ii.      Analysis
      The district court added a criminal history point for Arroyos’s prior federal
misdemeanor conviction for an incident in Arizona in 2006. Immigration and
Customs Enforcement agents came to Arroyos’s door and asked him to identify
himself. Arroyos showed them an Arizona driver’s license issued in a name
other than his own in an attempt to show that he was in the United States
legally. Arroyos was in fact a Mexican citizen in the United States without a
lawful visa.
      Arroyos pleaded guilty to a violation of 18 U.S.C. § 1028(a)(4). That
statute makes it a crime to “knowingly possess[] an identification document
(other than one issued lawfully for the use of the possessor), authentication
feature, or a false identification document, with the intent such document or
feature be used to defraud the United States.” 18 U.S.C. § 1028(a)(4). Arroyos
served a twenty-day sentence in Arizona before he was moved to Texas for
proceedings in the instant case.
      Under the federal Sentencing Guidelines, a prior misdemeanor conviction
does not count toward a defendant’s criminal history score if it is “similar to” one
of the offenses listed in § 4A1.2(c)(1) or similar to another offense that itself is

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similar to one of the listed offenses. U.S.S.G. § 4A1.2(c)(1). An exception to this
rule applies if “(A) the sentence [in the prior offense] was a term of probation of
at least one year or a term of imprisonment of at least thirty days, or (B) the
prior offense was similar to an instant offense . . . .” U.S.S.G. § 4A1.2(c)(1).
Because Arroyos served only a twenty-day term of imprisonment for his prior
crime, and that crime was not similar to the instant offense, the only relevant
issue here is whether the prior crime was “similar to” one of the offenses listed
in § 4A1.2(c)(1).
      In determining whether a prior offense is “similar to” one of the offenses
listed in §4A1.2(c), this court follows “a common sense approach which relies on
all possible factors of similarity.” United States v. Hardeman, 933 F.2d 278, 281
(5th Cir. 1991). Such factors include
      a comparison of punishments imposed for the listed and unlisted
      offenses, the perceived seriousness of the offense as indicated by the
      level of punishment, the elements of the offense, the level of
      culpability involved, and the degree to which the commission of the
      offense indicates a likelihood of recurring criminal conduct.

Id. If the factors, “taken as a whole, indicate that the offense is, like the listed
offenses, neither particularly serious nor likely to indicate recurring criminal
conduct, then the defendant’s prior offense should be excluded.” Id. at 282. “A
court employing the Hardeman factors should do so cognizant of the fact that the
criminal history factors are designed to take into account the relative severity
of a prior offense as well as the degree to which it indicates the likelihood of
future criminal behavior.” United States v. Gadison, 8 F.3d 186, 193 (5th Cir.
1993). In this case we must decide whether, under the Hardeman factors,
Arroyos’s conviction under § 1028(a)(4) is “similar to” the listed crime of false
information to a police officer or a crime similar to it.
      We look to the state “failure to identify” offense under Texas Penal Code
§ 38.02(b) for guidance on defining the generic offense. See United States v.

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Reyes-Maya, 305 F.3d 362, 367-68 (5th Cir. 2002) (noting that the Texas failure
to identify offense is similar to the generic offense of “[f]alse information to a
police officer” listed in the Guidelines); see also United States v. Lopez-Pastrana,
244 F.3d 1025, 1028 n.4 (9th Cir. 2001) (“For purposes of comparison, we use the
federal definitions of the listed offenses. Where there is no federal law on
point . . . we may look to either state law or the Model Penal Code.” (citation
omitted)).3 Under the failure to identify statute, “[a] person commits an offense
if he intentionally gives a false or fictitious name, residence address, or date of
birth to a peace officer who has . . . lawfully detained the person.” TEX. PENAL
CODE ANN. § 38.02(b)(2).
      Regarding the range of possible punishments, Arroyos’s prior conviction
carried a possible punishment range of up to one year imprisonment, see 18
U.S.C. § 1028(b)(6), while the maximum punishment under § 38.02(b) is 180
days, see TEX. PENAL CODE ANN. §§ 12.22, 38.02(c)(2). However, in terms of
“perceived seriousness,” we consider the actual punishment range given rather
than the statutory range: “More important than the statutory range of
punishments is the actual punishment given, as ‘[t]he level of punishment
imposed for a particular offense serves as a reasonable proxy for the perceived
severity of the crime.’” Reyes-Maya, 305 F.3d at 367 (quoting Hardeman, 933
F.2d at 282). Arroyos received only a twenty-day sentence for his crime, which
suggests a level of seriousness similar to or lower than the generic state crime.
      The elements of the two crimes, on the other hand, are dissimilar. A
conviction under § 1028(a)(4) requires a showing that the defendant (1)
knowingly possessed a false identification document, (2) “with intent . . . to
defraud the United States.” 18 U.S.C. § 1028(a)(4). By contrast, the state
failure to identify statute does not involve the possession of false documents, but

      3
         Because neither party argues that federal law provides a definition for the listed
offense at issue here, we do not consider that possibility.

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merely makes it a crime to “intentionally give[] a false or fictitious name,
residence address, or date of birth to a peace officer.” TEX. PENAL CODE ANN.
§ 38.02(b). This is a significant difference because, under § 1028(a)(4), an
individual must have undertaken a prior act to obtain a false document, possibly
in anticipation of using it fraudulently. Merely giving false information verbally,
as described by the Texas statute, requires no forethought. The Seventh Circuit
has endorsed such a distinction in this context:
       The giving of false [oral] information, as where a person arrested for
       speeding claims not to have known the speed limit or to have a
       malfunctioning speedometer, is often spontaneous; and the human
       proclivity for self-exculpation, which is what usually triggers a
       tender of false information to a police officer, is well-nigh universal.
       The element of calculation is greater when an individual goes to the
       bother of obtaining a false document in advance of any confrontation
       with an officer.

United States v. Caputo, 978 F.2d 972, 978 (7th Cir. 1992). We find this analysis
persuasive. Because seriousness of the offenses is a relevant factor under
Hardeman, it is important to recognize that the crime of using a false
identification document carries a greater level of seriousness than the generic
failure to identify or false information offense.4
       Therefore, we are convinced that the elements required for a conviction
under § 1028 indicate a level of seriousness higher than the generic offenses of
false information to a police officer or failure to identify. Accordingly, we hold
that the district court did not err in applying a criminal history point for
Arroyos’s prior § 1028(a)(4) conviction.



       4
         The parties rely on our decision in United States v. McDonald, 106 F.3d 1218 (5th Cir.
1997). However, McDonald does not bear directly on this case because it involved comparing
a prior conviction under Texas Penal Code § 38.02(b)(1) with an actual offense under 18
U.S.C. § 1028(a)(3). See McDonald, 106 F.3d at 1220. By contrast, our task in this case is to
decide whether a prior conviction under 18 U.S.C. § 1028(a)(4) is “similar to” the generic
offense of “[f]alse information to a police officer.”

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                             III. CONCLUSION
      Because the district court properly applied upward adjustments to
Arroyos’s sentence for his manager/supervisor role and his prior misdemeanor
conviction, we affirm the sentence imposed by the district court.
      AFFIRMED.




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