     Case: 09-20164     Document: 00511045243          Page: 1    Date Filed: 03/08/2010




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

                                                  FILED
                                                                            March 8, 2010

                                       No. 09-20164                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

ALEJANDRO GALAN DEL CARMEN, aka Juan Lopez Hernandez, aka
Alegandro C Gala, aka Alejandro Galan Delcarmen, aka Alejandro Galan-Del
Carmen, aka Alegandio Carmen Galan, aka Juan Hernandez-Lopez

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-696-1


Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Alejandro Galan Del Carmen pleaded guilty to one count of unlawful
reentry of a deported alien following an aggravated felony conviction. In this
appeal, he questions whether the district court erred by concluding that he
committed the instant offense within two years of his release from custody on
another offense for purposes of calculating his criminal history. We affirm.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20164   Document: 00511045243     Page: 2    Date Filed: 03/08/2010



                                 No. 09-20164



                                         I.
      The probation officer determined Del Carmen’s total offense level to be 21
and assessed his criminal history score at eight points, which placed him in
Criminal History Category IV. This resulted in a guidelines range of 57 to 71
months.   Pertinent to this appeal, the probation officer concluded that Del
Carmen should receive two criminal history points because he committed the
instant offense within two years of his release from custody on a Washington
conviction for heroin offenses. U.S.S.G. § 4A1.1(e).    The PSR states that Del
Carmen was released from custody on the heroin offense and deported on
January 28, 2006. The PSR also states that Del Carmen returned to the United
States on or about February 28, 2006.
      It is undisputed that for the two points at issue to apply, Del Carmen must
have committed the illegal reentry offense within two years of his release from
custody on another conviction, in this case, his Washington state heroin delivery
convictions. See § 4A1.1(e). Thus, two dates are relevant: the date Del Carmen
was released from custody on the Washington sentence, and the date he
committed the illegal reentry offense.
      Del Carmen objected to the accuracy of both dates, arguing first that the
PSR does not distinguish between the date he was released from custody in
Washington state and the date he was deported via San Ysidro, California.
However, Del Carmen presented no rebuttal evidence to counter the possibility
that he was released from custody and deported on the same date.
      Del Carmen also objected to the date of his return to the United States,
arguing that he did not return to the United States until March 2008. In


                                         2
   Case: 09-20164   Document: 00511045243      Page: 3   Date Filed: 03/08/2010



                                  No. 09-20164

support, he attached a letter from his wife indicating that the two decided in
March 2008 that he should return to the United States to seek work. The
probation officer prepared an addendum to the PSR disagreeing with Del
Carmen. The probation officer cited two immigration forms. The first was Form
I-871, titled “Notice of Intent/Decision to Reinstate Prior Order,” which stated
that Del Carmen had been deported on January 28, 2006, and that he illegally
reentered the United States on or about February 28, 2006. Del Carmen signed
the form, but the import of his signature is disputed. The second form was Form
I-213, which reflected that in an interview with immigration officials on October
3, 2008, Del Carmen stated that he entered the United States on February 28,
2006, and that he had been in the country for more than a year, contrary to his
suggestion that he had entered in March 2008.
      Del Carmen filed a response to the PSR Addendum, offering additional
evidence that he was not in the United States during the relevant two-year
period. This evidence included the following: a photograph of Del Carmen, his
wife, and children, purportedly in Mexico, dated October 4, 2006; a receipt for a
donation to his son’s school, in Del Carmen’s name, dated April 6, 2006; a receipt
for a donation to a local festival, in Del Carmen’s name, dated August 30, 2006;
a utility bill, in Del Carmen’s name, dated July 2007; a letter from his wife
attesting to the authenticity of the photograph, the receipts, and the payment
of the utility bill by Del Carmen; and receipts and an affidavit from the owner
of a business in Mexico attesting that Del Carmen worked there from March
2006 until January 2008.
      At sentencing, Del Carmen challenged the information in the I-871,
asserting that he never affirmatively admitted any facts. Rather, he asserted


                                        3
   Case: 09-20164    Document: 00511045243      Page: 4    Date Filed: 03/08/2010



                                  No. 09-20164

that he simply signed the form attesting that he did not contest his removability.
He also argued that there was no indication that communications were made in
Spanish or that he understood what he was signing. He also introduced a form
I-215B, which he said was another immigration form reciting that he did not
answer questions regarding his reentry, including the date.
      The district court overruled Del Carmen’s objections without explanation,
adopting the PSR and the addendum. The district court then sentenced Del
Carmen to 68 months in prison. After sentencing but before entry of judgment,
Del Carmen filed a timely notice of appeal.
                                        II.
      In his sole issue on appeal, Del Carmen contends that the district court
erred by assessing two criminal history points based on his commission of the
instant offense within two years of his release on his state sentence. Under this
court’s bifurcated reasonableness review of sentences, this court first looks to
whether the district court committed any significant procedural error; if not, this
court then reviews the substantive reasonableness of the sentence. See Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). Del Carmen’s challenge to the calculation of his
criminal history score implicates the procedural error prong of this two-step
review. See Delgado-Martinez, 564 F.3d at 752-53. This court reviews the
district court’s interpretation and application of the Guidelines de novo, and its
findings of fact for clear error. See United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). A district court’s factual findings are not clearly
erroneous if plausible in light of the record as a whole. United States v. Villegas,
404 F.3d 355, 361-62 (5th Cir. 2005).


                                         4
   Case: 09-20164    Document: 00511045243      Page: 5   Date Filed: 03/08/2010



                                  No. 09-20164

      The Government has the burden of proving facts that enhance a sentence
by a preponderance of the evidence. See, e.g., United States v. Conner, 537 F.3d
480, 492 (5th Cir. 2008). Factual findings under the Guidelines must be based
on reliable information and a preponderance of the evidence. Id. The PSR is
generally sufficiently reliable evidence for fact-finding under the Guidelines, and
the district court may adopt it without further inquiry if the facts have an
adequate evidentiary basis and the defendant does not present rebuttal
evidence. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
                                       III.
      The date of Del Carmen’s release from custody from the Washington state
charges was stated in the PSR and based on the probation officer’s “review of the
Immigration and Customs Enforcement (ICE) investigative material provided
by the case agent”to the probation office. Although Del Carmen objected to the
date, he offered no rebuttal evidence refuting its accuracy. Accordingly, the
district court was entitled to rely on that date, January 28, 2006, as the date of
his release from custody for purposes of applying the sentencing enhancement.
      The PSR also states that Del Carmen admitted that he returned to the
United States on or about February 28, 2006, via San Ysidro California. This
statement in the PSR is similarly based on Del Carmen’s immigration records.
In particular as to this date, the PSR Addendum also cited Form I-213, which
recited that in an interview, Del Carmen admitted returning on February 28,
2006, and reflected that Del Carmen had been in the United States for more
than a year prior to the interview, which took place in October 2008.
      Del Carmen submitted rebuttal evidence, in the form of the letter from his
wife, the photograph dated March 2006, receipts, a bill, and the affidavit from


                                        5
   Case: 09-20164      Document: 00511045243   Page: 6   Date Filed: 03/08/2010



                                  No. 09-20164

his employer, which tended to show that he was in Mexico from March 2006
until at least January 2008. However, this evidence, even if it establishes that
Del Carmen was in Mexico after February 2006 does not preclude a finding that
he illegally reentered on February 28, 2006. In addition, Del Carmen’s assertion
that he did not reenter until March 2008 is contradicted by the assertion in the
I-213 that he had been in the country for more than one year prior to October
2008. Thus, the district court’s findings underlying the challenged sentencing
enhancement are not clearly erroneous.
                                       IV.
      Based on this record, the district court did not clearly err by concluding
that Del Carmen reentered the United States thereby committing the instant
offense within two years of his release from custody on a Washington conviction
for heroin offenses.    This timing qualifies him for the enhancement under
U.S.S.G. § 4A1.1(e).
AFFIRMED.




                                        6
