     Case: 12-20226      Document: 00512680229         Page: 1    Date Filed: 06/27/2014




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

                                                                               FILED
                                    No. 12-20226                           June 27, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELEAZAR FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:09-CR-275-12


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       We withdraw the prior panel opinion, and substitute the following:
       Eleazar Flores, federal prisoner # 86573-279, appeals from his mid-
guideline range sentence of 150 months imposed following his guilty plea
conviction for possession with intent to distribute 100 kilograms or more of
marijuana. Flores argues that the district court improperly considered his
bare arrest record in determining his sentence and that the Government has


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-20226       Document: 00512680229          Page: 2     Date Filed: 06/27/2014


                                       No. 12-20226

not carried its burden of demonstrating that the district court would have
imposed the same sentence absent its reliance on that invalid factor.
       Because Flores did not object in the district court to the consideration of
his arrests, review is for plain error, Puckett v. United States, 556 U.S. 129,
135 (2009), and the burden is on Flores to show that there is a reasonable
probability that the district court would have imposed a lesser sentence if it
had not considered his bare arrest records. United States v. Johnson, 648 F.3d
273, 278 (5th Cir. 2011).
       Flores is correct that a district court may not consider a bare arrest
record that contains no information about the circumstances of the defendant’s
conduct that resulted in the arrest. See United States v. Windless, 719 F.3d
415, 420 (5th Cir. 2013). The district court may have committed clear or
obvious error in considering those of Flores’s arrests that were not sufficiently
described. 1 However, in the context of plain error review, even if the district
court errs in considering bare arrests, the court must determine whether the
consideration of the arrests in conjunction with other permissible factors had
an effect on the defendant’s substantial rights or seriously affected the fairness
and integrity of the judicial proceedings. United States v. Williams, 620 F.3d
483, 495 (5th Cir. 2010).
       A review of the sentencing transcript reflects that in addition to any
consideration of Flores’s prior arrests, the district court considered the
seriousness of Flores’s drug offense, his managerial role in the offense, his
continued use of drugs, and the fact that he was convicted of several offenses
that were not taken into consideration in determining his criminal history.


       1 The presentence investigation report lists a number of Flores’s arrests. Although
some of these arrest records were bare because they provided only “the mere fact of an arrest,”
others were not and provided more detail regarding the circumstances leading to the arrest.
See United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012).


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    Case: 12-20226    Document: 00512680229     Page: 3   Date Filed: 06/27/2014


                                 No. 12-20226

The record shows that the district court gave significant weight to several valid
18 U.S.C. § 3553(a) factors and does not reflect that it gave undue weight to
Flores’s prior unexplained arrests.    Flores has not demonstrated that the
district court would have imposed a lesser sentence if it had not considered the
record of his bare arrests. Thus, he failed to show a substantial impact on his
rights. See Williams, 620 F.3d at 96. In the absence of demonstrating an error
that had a detrimental effect on his substantial rights, Flores cannot show that
such error had an effect on the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Jones, 489 F.3d 679, 682-83 (5th Cir.
2007). Therefore, the district court did not commit plain error in imposing the
mid-guideline sentence. Flores’s sentence is AFFIRMED.




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