     Case: 12-41433      Document: 00512562932         Page: 1    Date Filed: 03/17/2014




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

                                                                              FILED
                                    No. 12-41433                         March 17, 2014
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE CRISTOBAL CANALES-MARTINEZ, also known as Jose Canales, also
known as Jose Cristoba Canales-M, also known as Jose C. Canales, also known
as J. Cristobal Canales-Martinez, also known as Jose Cristoba Canales-
Martinez, also known as Jose C. Canales-Martinez, also known as Jose
Martinez-Canales, also known as Jose Martinez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-171-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Jose Cristobal Canales-Martinez (Canales) appeals the bottom-of-the-
Guidelines sentence of 27 months of imprisonment imposed by the district
court following his guilty plea conviction of being an alien found unlawfully



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-41433    Document: 00512562932     Page: 2   Date Filed: 03/17/2014


                                 No. 12-41433

present in the United States after having been previously deported. For the
first time on appeal, he contends that the district court’s consideration of bare
arrest records to deny his request for a sentence below the guidelines range
renders his sentence procedurally and substantively unreasonable.
      Because the issue was not raised in the district court, our review is for
plain error. See Puckett v. United States, 556 U.S. 129, 134–35 (2009). To
demonstrate plain error, Canales must show a forfeited error that is clear or
obvious and that affects his substantial rights. Id. at 135. If he makes such a
showing, we have the discretion to correct the error but will do so only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Canales argues that the district court imposed a procedurally and
substantively unreasonable sentence upon him because it considered his bare
arrest records from 1995 and 1996. Canales’s PSR indicated that he was
arrested for Driving While Ability Impaired by the Consumption of Alcohol in
June 1996, and that there was an active arrest warrant for him from December
1995 arising out of an indictment for Assault in the First Degree and Assault
in the Second Degree. The PSR does not report the disposition of these charges.
Additionally, the PSR reported that Canales: (1) was convicted of robbery in
1993, a first-degree felony; (2) pleaded guilty to Driving While Ability Impaired
by the Consumption of Alcohol in August 1995, a misdemeanor; and (3) pleaded
guilty to Aggravated Unlicensed Operation of a Motor Vehicle and Driving
While Ability Impaired by the Consumption of Alcohol in June 1997, both
misdemeanors.
      The PSR recommended a Guidelines range of 27 to 33 months’
imprisonment.      Canales moved for a downward departure.          During the
sentencing hearing, the district court denied his motion and imposed a



                                       2
    Case: 12-41433     Document: 00512562932     Page: 3   Date Filed: 03/17/2014


                                  No. 12-41433

sentence of 27 months.      The district court commented on Canales’s 1993
robbery conviction and stated that Canales’s criminal conduct was “extensive.”
Shortly thereafter, the district court referenced Canales’s criminal conduct
again and stated, “I think this criminal history would require . . . a significant
sentence in this particular matter.”    Canales objected that the sentence was
“a lot of time” and that he was being imprisoned for “something that [he]
already paid for.” The district court responded that
      [I]t’s just not your felony conviction . . . . You’ve also got pending
      charges elsewhere . . . . If you had been a good citizen . . . and not
      been just a complete criminal, I might have been -- been more
      imposed [sic] to consider a downward departure, but it would
      appear from your record that you weren’t.
      On appeal, Canales explains that the district court’s reference to his
pending charges was a reference to his arrest record. He argues that the
district court improperly relied on his bare arrest record in imposing the
sentence and that this affected his substantial rights by resulting in a longer
sentence.
      A district court may not consider at sentencing a defendant’s “bare arrest
record.” United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012) (quotation
marks omitted).      “The term ‘bare arrest record,’ in the context of a PSR
describes the reference to the mere fact of an arrest—i.e. the date, charge,
jurisdiction and disposition—without corresponding information about the
underlying facts or circumstances regarding the defendant’s conduct that led
to the arrest.” Id.; see also United States v. Jones, 444 F.3d 430, 434 (5th Cir.
2006) (“Arrests, standing alone, do not constitute reliable information under
either the Guidelines or our precedent pre-dating the Guidelines.”) The district
court clearly referred to the PSR’s account of the June 1996 arrest and
December 1995 arrest warrant in determining Canales’s sentence. Moreover,
there is no corresponding information in the PSR that renders the arrests


                                        3
    Case: 12-41433       Document: 00512562932     Page: 4   Date Filed: 03/17/2014


                                    No. 12-41433

reliable. Thus, the district court’s reliance on these arrests constitutes clear
error.
         However, to prevail Canales must show that the district court’s error
affected his substantial rights by “undermining confidence in the outcome.”
United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (quotation marks,
brackets, and citations omitted). The record must indicate that there is a
reasonable probability that Canales would have received a lesser sentence if
the district court had not considered his prior arrests. See Jones, 444 F.3d at
438. Canales cannot make this showing.
         The district court did not exclusively rely on the objectionable aspects of
Canales’s criminal history in determining his sentence; it also took into
consideration Canales’s three prior convictions, which included a felony
robbery conviction. Since the district court properly relied on his criminal
history, Canales has shown only a mere possibility, as opposed to a reasonable
probability, that the district court would have imposed a lesser sentence had it
not considered bare arrest records. See United States v. Gonzalez-Achondo,
493 F. App’x 539, 540 (5th Cir. 2012) (affirming sentence where the district
court relied on defendant’s lengthy criminal history, which included eight
convictions, and the sentence was within the guidelines range); United States
v. Williams, 620 F.3d 483, 496 (5th Cir. 2010) (holding defendant had not
demonstrated a reasonable probability that he would receive a lesser sentence
but for the district court’s consideration of his bare arrests when the district
court also considered his prior convictions and arrests for similar crimes that
were supported by reliable testimony at trial); Jones, 444 F.3d at 438 (holding
that defendant could not demonstrate that he would have received a lesser
sentence when the district court commented on the seriousness of the offense




                                          4
    Case: 12-41433    Document: 00512562932    Page: 5   Date Filed: 03/17/2014


                                No. 12-41433

at sentencing). Canales fails to make the requisite showing of an effect on his
substantial rights. See Puckett, 556 U.S. at 135.
      AFFIRMED.




                                      5
