     Case: 12-60484       Document: 00512106876         Page: 1     Date Filed: 01/09/2013




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

                                                                            FILED
                                                                          January 9, 2013
                                     No. 12-60484
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELIE FRANKLIN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:11-CR-156-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Elie Franklin appeals the 84-month above-guidelines sentence imposed by
the district court following his guilty plea conviction for failure to register as a
sex offender. He asserts that the sentence was unreasonably long given that the
advisory guidelines range was 33 to 41 months of imprisonment and that the
district court erred in basing the sentence in part on information in the
Presentence Report (PSR) ¶ 95 that he had sexual relations with a woman
without informing her that he was HIV positive.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60484

        Neither the district court’s oral reasons nor the Statement of Reasons
clearly indicates that the district court based Franklin’s sentence in part on the
information in PSR ¶ 95. However, even if the district court based the sentence
in part of this conduct, Franklin has not shown that the sentence was
substantively unreasonable for that reason. Under 18 U.S.C. § 3661, there is no
limit on the information concerning a defendant’s background, character, and
conduct that a sentencing court may receive and consider for sentencing
purposes. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). There
was reliable evidence in the record on which the district court could rely to find
by a preponderance of the evidence that Franklin had sexual relations with a
woman without informing her that he was HIV positive, including the woman’s
testimony at Franklin’s detention hearing and her written statement introduced
at Franklin’s sentencing hearing. See United States v. Whitfield, 590 F.3d 325,
367 (5th Cir. 2009). Although Franklin was not arrested or convicted for this
conduct, this case is analogous to United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir.2008), in which this court affirmed a sentence based in part on
the defendant’s prior arrests where the arrests were deemed reliable because the
underlying charges were corroborated by more than half a dozen deportations.
This case is distinguishable from United States v. Johnson, 648 F.3d 273, 277-78
(5th Cir. 2011)(holding that it is error for a sentencing court to consider a
defendant’s bare arrest record without more in imposing a sentence), because
there was reliable evidence in the record to support the information in the PSR
concerning Franklin’s prior conduct. Therefore, to the extent that the district
court based Franklin’s sentence in part on this prior conduct, the district court
did not err in considering this information because it was based on reliable
evidence. See, e.g., Lopez-Velasquez, 526 F.3d at 807; Whitfield, 590 F.3d 325,
367.
        The 84-month sentence was not otherwise substantively unreasonable.
The district court expressly relied on the advisory guidelines range, the statutory

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                                 No. 12-60484

penalties, and the 18 U.S.C. § 3553(a) factors, focusing primarily on Franklin’s
extensive criminal history and numerous parole violations, the seriousness of the
instant offense, the need to provide just punishment, and the need to protect the
public from further crimes by him.         Although the upward variance was
significant, this court has affirmed more significant deviations. See United
States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008); United States v.
Williams, 517 F.3d 801, 812 (5th Cir. 2008); United States v. Smith, 417 F.3d
483, 492-93 (5th Cir. 2005).
      AFFIRMED.




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