     Case: 17-11244      Document: 00514994719         Page: 1    Date Filed: 06/13/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                      No. 17-11244
                                                                            Fifth Circuit

                                                                          FILED
                                                                      June 13, 2019

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
                                                 Plaintiff-Appellee

v.

REFUGIO QUINTANAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-85-1


Before HAYNES, GRAVES, and DUNCAN, Circuit Judges
PER CURIAM: *
       Refugio Quintanar appeals his above-Guidelines sentence. Quintanar
pleaded guilty to being a felon in possession of ammunition. In the presentence
report (“PSR”), the probation officer suggested that an upward departure from
the guidelines range might be warranted under U.S.S.G. § 4A1.3 based on
Quintanar’s extensive criminal history. Quintanar objected to this suggestion.
At sentencing, the district court recounted Quintanar’s criminal history, which



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11244

included four juvenile adjudications, three unadjudicated juvenile incidents, 1
eight adult convictions, five adult charges that were not prosecuted, and three
pending criminal charges.           The district court also mentioned Quintanar’s
Texas Youth Commission (“TYC”) records, which included 280 incident reports
spanning 559 pages. As to the three unadjudicated juvenile incidents, the
district court found by a preponderance of the evidence that Quintanar had
“engaged in the inappropriate conduct” described in the PSR.                      Quintanar
objected to the district court’s preponderance-of-the-evidence findings, arguing
the findings violated his Fifth and Sixth Amendment rights. The district court
overruled the objection, and, based on Quintanar’s extensive criminal history,
sentenced him to ninety-six months of imprisonment and three years of
supervised release.
        On appeal, Quintanar argues that the district court erred by basing the
upward variance on his TYC records and two unadjudicated juvenile assault
incidents because this information did not have sufficient indicia of reliability. 2
We conclude that the district court did not reversibly err and AFFIRM.

       1 The three unadjudicated juvenile incidents consisted of the following: (1) when
Quintanar was eleven the Fort Worth Police Department (or “FWPD”) located Quintanar
with black paint on his hand and a marker in his pocket two blocks from where a resident
had called to complain that a Hispanic boy had spray-painted on his house; (2) when
Quintanar was twelve, the FWPD responded to a domestic disturbance call from his mother
when he hit her after they argued; and (3) when Quintanar was thirteen, the FWPD
responded to a domestic disturbance call from Quintanar’s mother’s boyfriend after
Quintanar hit the boyfriend with a shoe and then a metal chair support rod.
       2  Quintanar also raises two foreclosed issues on appeal solely to preserve them for
further review. He first argues that the district court violated his Sixth Amendment right to
confrontation by failing to permit him to cross-examine at the sentencing hearing the out-of-
court declarants who accused him of the unadjudicated offenses referenced in the PSR. He
correctly concedes that this issue is foreclosed as recognized in United States v. Mitchell, 484
F.3d 762, 776 (5th Cir. 2007). Next, he contends that the district court erred by applying
U.S.S.G. § 2K2.1(a)(4) to increase his base offense level because he had a prior conviction for
a crime of violence, as defined in U.S.S.G. § 4B1.2(a). He asserts that his prior conviction for
Texas robbery does not qualify as a crime of violence, but he correctly concedes that this
argument is foreclosed by our holding concerning the generic enumerated offense of robbery
as set forth in United States v. Santiesteban-Hernandez, 469 F.3d 376, 380–81 (5th Cir. 2006),


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                                    No. 17-11244

                                     I. TYC Records
      Quintanar argues that the incident reports in the TYC records are the
equivalent of bare arrest records, on which a district court may not rely at
sentencing. See United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013).
Because Quintanar specifically objected only to the district court’s
preponderance-of-the-evidence findings, we review his challenge to the district
court’s consideration of the TYC records for plain error. See United States v.
Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). Under that standard,
Quintanar must show “(1) an error (2) that was clear or obvious (3) that
affected his substantial rights.” United States v. Avalos-Martinez, 700 F.3d
148, 153 (5th Cir. 2012) (per curiam). If he does, “we have the discretion to
correct the error if it ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Id. (quoting Puckett v. United States, 556
U.S. 129, 135 (2009)).
      Due to the lack of binding authority that puts Quintanar’s argument
beyond reasonable debate, he cannot show that any error was clear or obvious.
See United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015); United States
v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009). Moreover, even if the district
court did commit clear or obvious error by relying on the incident reports in
the TYC records, Quintanar cannot show that the error affected his substantial
rights; the district court primarily relied on “other significant, permissible
factors,” such as his four adjudicated juvenile assaults and eight adult
convictions, when determining that an upward variance was appropriate. See
United States v. Rodriguez-Rodriguez, 775 F.3d 706, 714 (5th Cir. 2015)




overruled on other grounds by United States v. Rodriguez, 711 F.3d 541, 547–63 (5th Cir.
2013).


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                                 No. 17-11244

(quoting United States v. Williams, 620 F.3d 483, 495 (5th Cir. 2010)). Thus,
the district court did not commit plain error.
                     II. Unadjudicated Juvenile Incidents
      The information underlying Quintanar’s unadjudicated juvenile assault
incidents was based on offense reports from the Fort Worth Police Department.
Quintanar argues that the information lacked sufficient indicia of reliability
because the complainants’ accounts were not corroborated and because police
officers are generally motivated to create actionable cases.
      We review criminal sentences for reasonableness using an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In making
that determination, we review the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
Hinojosa, 749 F.3d 407, 411 (5th Cir. 2014). Facts used to determine a sentence
must be supported “by a preponderance of the relevant and sufficiently reliable
evidence.” United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013) (quoting
United States v. Betancourt, 422 F.3d 240, 247 (5th Cir. 2005)).
      “Generally, a PSR ‘bears sufficient indicia of reliability to be considered
as evidence by the sentencing judge in making factual determinations.’”
United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014) (per curiam)
(quoting United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012)).
Information from police reports may be sufficiently reliable. Id. Further, a
district court may consider hearsay when making its determinations. United
States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010). “The defendant bears the
burden of presenting rebuttal evidence to demonstrate that the information in
the PSR is inaccurate or materially untrue.” United States v. Cervantes, 706
F.3d 603, 620–21 (5th Cir. 2013) (brackets omitted) (quoting United States v.
Scher, 601 F.3d 408, 413 (5th Cir. 2010) (per curiam)).



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                                No. 17-11244

      Here, the information in the PSR was drawn from Fort Worth Police
Department offense reports and included detailed information about the
alleged assaults. The offense reports described each complainant’s account of
the assault as well as what the officers viewed upon arriving at the scene.
Although Quintanar objected to the district court’s findings as a violation of
his Fifth and Sixth Amendment rights, he did not claim the facts were
inaccurate nor did he provide any rebuttal evidence to demonstrate the
information in the PSR was unreliable. Thus, the district court did not err.
      The district court’s judgment is AFFIRMED.




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