     Case: 18-40137       Document: 00514760735         Page: 1     Date Filed: 12/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                     No. 18-40137                             FILED
                                   Summary Calendar                   December 14, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

EDGAR MENDEZ-BECERRA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-551-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Edgar Mendez-Becerra pleaded guilty to illegal reentry into the United
States, in violation of 8 U.S.C. § 1326(a), (b).               His revised presentence
investigation report (PSR) declined to include a three-level decrease to the
offense level for acceptance of responsibility pursuant to Sentencing Guideline
§ 3E1.1 (providing for the offense level to be decreased if a “defendant clearly
demonstrates acceptance of responsibility for his offense”), finding Mendez


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-40137     Document: 00514760735      Page: 2   Date Filed: 12/14/2018


                                  No. 18-40137

continued to participate in criminal behavior while incarcerated by assaulting
two fellow inmates in a gang-related altercation. Mendez contends the district
court erred in determining he was not entitled to the § 3E1.1 three-level
decrease.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      The denial of a reduction for acceptance of responsibility, however, is
reviewed with greater deference than the clear-error standard; it is upheld
unless the decision is “without foundation”. United States v. Juarez-Duarte,
513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks and citation
omitted). Defendant has the burden of proving entitlement to the reduction.
United States v. Thomas, 120 F.3d 564, 574–75 (5th Cir. 1997).
      For sentencing, “[t]he district court may adopt the facts contained in a
[PSR] without further inquiry if those facts have an adequate evidentiary basis
with sufficient indicia of reliability and the defendant does not present rebuttal
evidence or otherwise demonstrate that the information in the PSR is
unreliable”.   United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)
(internal quotation marks and footnote omitted). In other words, defendant
has the burden of presenting evidence to show the facts in the PSR are



                                        2
    Case: 18-40137     Document: 00514760735      Page: 3   Date Filed: 12/14/2018


                                  No. 18-40137

“inaccurate or materially untrue”. United States v. Cervantes, 706 F.3d 603,
620–21 (5th Cir. 2013) (internal quotation marks and citations omitted).
      The PSR relied on the detention center’s report regarding the assault,
the officials’ and victims’ identifications of Mendez as one of the assailants, and
video footage. See United States v. Vela, 927 F.2d 197, 201 (5th Cir. 1991).
Moreover, at sentencing, the court heard testimony about the assault from the
detention center’s chief security officer and watched the surveillance video. It
is irrelevant the witness’ testimony included hearsay because such testimony
is allowed at sentencing if it is reliable. See United States v. Andaverde-Tinoco,
741 F.3d 509, 525 (5th Cir. 2013). Further, the court was “free to choose among
reasonable constructions of the evidence”, and a reasonable trier of fact could
have disbelieved Mendez’ self-serving testimony.        United States v. Alaniz-
Alaniz, 38 F.3d 788, 792 (5th Cir. 1994) (internal quotation marks and footnote
omitted). Therefore, Mendez failed to meet his burden to show the PSR’s facts
were “inaccurate or materially untrue” or that he was entitled to the reduction.
See Cervantes, 706 F.3d at 620–21; Thomas, 120 F.3d at 574–75.
      AFFIRMED.




                                        3
