     Case: 17-41112       Document: 00514642357         Page: 1     Date Filed: 09/14/2018




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

                                     No. 17-41112                                FILED
                                   Summary Calendar                      September 14, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

SAMUEL BARRAGAN-ROSALES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:17-CR-838-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Samuel Barragan-Rosales appeals his 84-month prison sentence,
imposed after pleading guilty to being an alien found in the United States
following a previous removal, in violation of 8 U.S.C. § 1326(a), (b).                            He
challenges the document relied upon to, inter alia, show a prior conviction
necessary for the sentencing enhancement under the Sentencing Guidelines
for his offense level.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-41112     Document: 00514642357      Page: 2   Date Filed: 09/14/2018


                                  No. 17-41112

      The presentence investigation report (PSR) recommended the eight-level
enhancement because Barragan had a prior felony conviction for aggravated
burglary in Louisiana in 2008, which occurred before his first order of removal
in 2011.   U.S.S.G. § 2L1.2(b)(2)(B) (“If, before the defendant was ordered
deported or ordered removed from the United States for the first time, the
defendant sustained— (B) a conviction for a felony offense (other than an
illegal reentry offense) for which the sentence imposed was two years or more”).
Barragan also has previous felony convictions for possession of marijuana,
possession of cocaine, and being found in the United States after a previous
removal; and, one misdemeanor conviction for driving while intoxicated. As a
result, he had an offense level of 23, and a criminal history category of V,
resulting in an advisory Guidelines sentencing range of 84-105 months.
Barragan’s objection in district court regarding the evidence offered in support
of the enhancement was overruled.
      He contends the court erred in finding an extract from the minutes of the
Louisiana court constituted reliable evidence of his prior conviction to satisfy
the enhancement because the document is uncertified, unsigned by a judge or
clerk, and the division of the court is missing. The extract is one page of a
three-page facsimile transmission.
      Although post-Booker, the 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,



                                        2
    Case: 17-41112     Document: 00514642357     Page: 3   Date Filed: 09/14/2018


                                  No. 17-41112

only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      The Government must prove by a preponderance of the evidence the facts
forming the basis of a sentencing enhancement. United States v. Serfass, 684
F.3d 548, 553 (5th Cir.) cert. denied, 568 U.S. 1016 (2012). In that regard, our
court reviews for clear error the district court’s finding the evidence submitted
to prove the fact of a prior conviction is sufficiently reliable. United States v.
Ortega-Calderon, 814 F.3d 757, 759 (5th Cir. 2016); United States v. Goncalves,
613 F.3d 601, 604–05 (5th Cir. 2010).
      Barragan contends the Government was required to provide certain
evidence supporting the conviction and cites precedent applicable to the
modified-categorical approach. E.g. Taylor v. United States, 495 U.S. 575
(1990); see also Shepard v. United States, 544 U.S. 13 (2005). The modified-
categorical approach, however, is not triggered here; only evidence a prior
conviction exists is required. U.S.S.G. § 2L1.2(b)(2)(B). As our court stated in
Ortega-Calderon, “[w]e have recognized the distinction between the legal
inquiry at the heart of Taylor and the factual question of whether a defendant
has been convicted—period”. 814 F.3d at 760.
      The remaining question is whether the Government proved, by a
preponderance of the evidence, the court-minutes extract provided sufficient
indicia of reliability to satisfy the Guidelines. United States v. Rodriguez, 630
F.3d 377, 380 (5th Cir. 2011); U.S.S.G. § 6A1.3(a) (All information relevant to
any important sentencing factor may be considered, regardless of the Rules of
Evidence, as long as the information has “sufficient indicia of reliability to
support its probable accuracy”). For the following reasons, the extract was
sufficiently reliable to prove the existence of the prior conviction. See Ortega-
Calderon, 814 F.3d at 762-63.



                                        3
    Case: 17-41112      Document: 00514642357   Page: 4     Date Filed: 09/14/2018


                                 No. 17-41112

      The extract provided a significant amount of detail, listing, inter alia:
Barragan’s name, offense of conviction, date of conviction, and various
admonishments he received pursuant to his guilty plea. Its lack of certification
is not dispositive of its reliability. See id. at 761. Moreover, Barragan has not
offered evidence to rebut the reliability of the evidence. See id. at 762–63; see
also United States v. Neri-Hernandes, 504 F.3d 587, 592 (5th Cir. 2007). Our
court has declined to find evidence of a prior conviction unreliable where the
defendant fails to present rebuttal evidence. Ortega-Calderon, 814 F.3d at
762–63 (citing United States v. Mazarego-Salazar, 590 F. App’x 345, 349 (5th
Cir. 2014), cert. denied 136 S. Ct. 1164 (2016)).         Finally, every form of
aggravated burglary under Louisiana law, as it existed at the time of
Barragan’s 2008 conviction, would satisfy the definition of “felony” because it
was punishable by a term of imprisonment exceeding one year. See La. Rev.
Stat. Ann. § 14:60 (2008); see also U.S.S.G. § 2L1.2 cmt. n.2 (“‘Felony’ means
any federal, state, or local offense punishable by imprisonment for a term
exceeding one year”).
      AFFIRMED.




                                       4
