     Case: 15-10214      Document: 00513488364         Page: 1    Date Filed: 05/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-10214                                 FILED
                                  Summary Calendar                            May 2, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FREDDY GARCIA, also known as Fat Freddy,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-208


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Freddy Garcia pleaded guilty to trafficking in methamphetamine, and
the court sentenced him to 360 months in prison, at the bottom of the advisory
guideline range as recounted in the presentence report (PSR). On appeal, he
contends that the base offense level was incorrect because it was based on
unreliable evidence of drug quantity. He also challenges two-level increases
based on his making a credible threat of violence at the time of his arrest,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10214

maintaining    a   premises     for   drug   distribution,   and   trafficking   in
methamphetamine that had been imported from Mexico.
      We review the district court’s factual findings for clear error and affirm
them if they are plausible in light of the record as a whole. See United States
v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). The facts need only be proved by
a preponderance of the evidence, and the district court was entitled to rely on
the PSR, which “generally bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual determinations.” Id.
(internal quotation marks and citation omitted). The district court was not
restricted to information that would be admissible at trial and could properly
consider hearsay evidence. United States v. Ramirez, 271 F.3d 611, 613 (5th
Cir. 2001). Garcia had the burden of showing that the information in the PSR
was materially untrue. Trujillo, 502 F.3d at 357. Conclusional contentions
are not sufficient to rebut the PSR. See United States v. Londono, 285 F.3d
348, 355 (5th Cir. 2002).
      Garcia’s challenges to drug quantity, maintaining a drug-distribution
premises, and importation were based on his conclusional assertions that the
sources cited in the PSR were unreliable or hearsay. Garcia fails to show that
those findings were implausible. See Trujillo, 502 F.3d at 357; Londono, 285
F.3d at 355; Ramirez, 271 F.3d at 613. Because the PSR was not based solely
on “a recitation of the conclusions of the [police] and the prosecutor,” this is not
a case where bald and conclusional statements were deemed reliable simply
because they were repeated in the PSR. Cf. United States v. Elwood, 999 F.2d
814, 817-18 (5th Cir. 1993) (“Bald, conclusionary statements do not acquire the
patina of reliability by mere inclusion in the PSR.”). Although Garcia argues
that the PSR relied predominantly on unsubstantiated statements of
unidentified sources, the PSR also relied on Garcia’s drug sales to undercover



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                                  No. 15-10214

law enforcement officers, recorded telephone calls with confidential sources,
laboratory analysis, and physical evidence discovered through the execution of
a search warrant, all of which corroborate the unidentified sources’ statements.
      As for the enhancement for a threat of force during Garcia’s arrest, the
arrest was recorded on video which corroborated the arresting officer’s account
of the fact of a threat. Further, Garcia’s contention that the increase may not
be based on a threat made during the arrest is reviewed for plain error because
he did not raise it in the district court. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain error, Garcia was
required to show, at minimum, a forfeited legal error that was “clear or
obvious, rather than subject to reasonable dispute.” See Puckett v. United
States, 556 U.S. 129, 135 (2009).        Garcia has pointed to no authority
establishing beyond reasonable dispute that threats during an arrest may not
be used to support the enhancement. Garcia fails to show any clear or plain
error in the guideline calculations.
      Moreover, even if we assume that there was some miscalculation of the
advisory guideline range, any error was harmless if it did not affect the district
court’s determination of the sentence. See United States v. Delgado-Martinez,
564 F.3d 750, 753 (5th Cir. 2009). To show harmless error, the Government
must demonstrate “(1) that the district court would have imposed the same
sentence had it not made the error, and (2) that it would have done so for the
same reasons it gave at the prior sentencing.” United States v. Ibarra-Luna,
628 F.3d 712, 714 (5th Cir. 2010). Because the district court stated in its
Statement of Reasons that “[e]ven if the guidelines calculations are not correct,
this is the sentence the Court would otherwise impose under 18 U.S.C. § 3553,”
the Government has made the required showing.              See United States v.




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                                  No. 15-10214

Richardson, 713 F.3d 232, 237 (5th Cir. 2013); United States v. Rios, 584 F.
App’x 275, 276 (5th Cir. 2014).
      The judgment is AFFIRMED.




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