     Case: 14-40509      Document: 00513011294         Page: 1    Date Filed: 04/20/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40509
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 20, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RICARDO JOSUE GUTIERREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-721-4


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Ricardo Josue Gutierrez pleaded guilty, pursuant to a plea agreement,
to harboring an undocumented alien for financial gain. Although Gutierrez’s
guidelines range of imprisonment was 51 to 63 months of imprisonment, the
district court upwardly departed, imposing a 120-month sentence. The upward
departure was based on the district court’s finding, adopted from the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40509

presentence report (PSR), that during the course of the offense, Gutierrez twice
raped an undocumented alien in his care, once at gun point.
      Gutierrez now argues that the district court clearly erred by (1) finding
that he raped an undocumented alien and (2) relying exclusively on the PSR
for that finding. To show that the district court’s factual finding is clearly
erroneous, Gutierrez must show that it is not “plausible in light of the record
as a whole.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013).
However, because Gutierrez did not object in the district court to the PSR’s
being the sole evidentiary support for the finding, review of that issue is for
plain error. See United States v. Fernandez, 770 F.3d 340, 344-45 & n.9 (5th
Cir. 2014). Under that standard, Gutierrez must show an error that is clear or
obvious and that affects his substantial rights before we will consider whether,
in our discretion, to remedy it. See United States v. Rodriguez-Rodriguez, 775
F.3d 706, 713 (5th Cir. 2015).
      The facts in the PSR were obtained from Homeland Security
investigative materials, including statements by the rape victim and other
material witnesses. As the PSR thus had an adequate evidentiary basis with
sufficient indicia of reliability and Gutierrez presented no evidence other than
his statement denying the rapes, the district court was free to adopt the facts
from the PSR. United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012)
(internal quotation marks and citation omitted).
      The finding that Gutierrez twice raped an undocumented alien in his
care is plausible in light of the record as a whole and therefore not clearly
erroneous.   See Zuniga, 720 F.3d at 590.       Moreover, we have specifically
rejected the argument that a district court may not rely solely on the PSR
where the facts are disputed. United States v. Bates, No. 95-50111, 1995 WL
581888, 8 (5th Cir. Sept. 21, 1995) (unpublished); see also 5TH CIR. R. 47.5.3



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                                 No. 14-40509

(unpublished opinions issued prior to January 1, 1996, are precedential).
Accordingly, Gutierrez has not demonstrated that the district court plainly
erred by relying exclusively on the PSR for its finding.
      The judgment of the district court is AFFIRMED.




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