     Case: 16-10805      Document: 00514007170         Page: 1    Date Filed: 05/25/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-10805                                   FILED
                                  Summary Calendar                             May 25, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                   Clerk


                                                 Plaintiff-Appellee

v.

LYLE EUGENE WILLIAMS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CR-7-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Lyle Eugene Williams appeals the sentence imposed following his guilty
plea conviction of destruction of mail.               Williams’s guideline range of
imprisonment was nine to 15 months of imprisonment. The district court
upwardly departed pursuant to the policy statement in U.S.S.G. § 4A1.3, p.s.,
and imposed a sentence of 36 months of imprisonment. The district court also
indicated, in its statement of reasons, that the sentence was an upward


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10805    Document: 00514007170      Page: 2   Date Filed: 05/25/2017


                                  No. 16-10805

variance outside the advisory guideline system. Williams argues that the
district court erred by relying on the presentence report’s (PSR) factual
recitation of his 1982 homicide charge, which was dismissed. Williams also
challenges the substantive reasonableness of his sentence.
      It is “well established that prior criminal conduct not resulting in a
conviction may be considered by the sentencing judge.” United States v. Lopez-
Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Conversely, a district court is not
permitted to rely on a “bare arrest record” that refers only to the fact of an
arrest and does not include information concerning the fact and circumstances
of the conduct resulting in the defendant’s arrest. United States v. Windless,
719 F.3d 415, 420 (5th Cir. 2013). An arrest record is not bare if it includes a
factual recitation of the conduct that formed the basis of the arrest and the
recitation has a sufficient and reliable evidentiary basis. Id.
      Williams’s assertion that the district court erred by relying on the PSR’s
factual recitation of the dismissed 1982 homicide charge is unavailing.
Williams contends that the information provided about the arrest fails to
establish that he committed the offense and has no indicia of reliability. On
the contrary, the PSR’s recitation of facts that led to Williams’s homicide arrest
is considerably more detailed than a “bare arrest record.” See United States v.
Fuentes, 775 F.3d 213, 220 (5th Cir. 2014). In discussing the 1982 homicide
charge and noting it had been dismissed, the district court impliedly deemed
the factual information contained in the PSR sufficiently reliable.           See
Windless, 719 F.3d at 420. As the upward departure or variance was based
upon evidence of Williams’s conduct contained in the PSR and obtained from
law enforcement sources, and Williams did not challenge the factual
recitations contained in the PSR, Williams has not shown that the upward




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                                 No. 16-10805

departure or variance was erroneous on this ground. See Fuentes, 775 F.3d at
220.
        We generally review “the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552
U.S. 38, 51 (2007). In this case, the departure or variance sentence imposed
advances the relevant objectives of 18 U.S.C. § 3553(a)(2), is justified by the
facts, and is reasonable. See id., 552 U.S. at 51; United States v. Zuniga-
Peralta, 442 F.3d 345, 347 (5th Cir. 2006). Given the nature and extent of
Williams’s criminal history and the deference owed to the district court’s
sentencing decision, the departure or variance is not unreasonable in extent.
See Zuniga-Peralta, 442 F.3d at 347-48.
        AFFIRMED.




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