     Case: 15-41196       Document: 00513589891         Page: 1     Date Filed: 07/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 15-41196                                    FILED
                                   Summary Calendar                              July 13, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ELVIS ANTONIO HERNANDEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-523-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Elvis Antonio Hernandez challenges the 37-month sentence imposed
following his guilty-plea conviction for illegal reentry into the United States
after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). He contends the
sentence is procedurally and substantively unreasonable because: the court
improperly considered his bare-arrest record in determining his sentence; and




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-41196

the Government has not carried its burden of demonstrating the court would
have imposed the same sentence absent its reliance on that invalid factor.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). 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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Hernandez did not object to the reasonableness of his sentence in district
court; accordingly, review is only for plain error. Puckett v. United States, 556
U.S. 129, 134–35 (2009). In that regard, Hernandez must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Id. at 135. If
he does so, this court has discretion to correct the reversible plain error, but
should do so only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings”. Id. The burden is on Hernandez, not the
Government, to show there is a reasonable probability the court would have
imposed a lesser sentence had it not considered his bare-arrest records. See
United States v. Williams, 620 F.3d 483, 496 (5th Cir. 2010).
      Regarding the procedural-unreasonableness challenge, a 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). On the other
hand, an arrest record is not considered bare “when it is accompanied by a
factual recitation of the defendant’s conduct that gave rise to a prior



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                                  No. 15-41196

unadjudicated arrest and that factual recitation has an adequate evidentiary
basis with sufficient indicia of reliability”.   Id. (internal quotation marks
omitted).      Here, the Pre-sentence Investigation Report’s description of
Hernandez’      2012   misdemeanor     assault-and-battery-on-a-family-member
conviction contained ample information concerning dismissed felony offenses
arising from that incident. Therefore, consideration of his arrest on those
charges was not based on a bare record; in short, there was no clear or obvious
error.
         Even assuming, arguendo, the district court committed clear or obvious
error by considering Hernandez’ unadjudicated assault arrests, our court must
determine, in the context of plain-error review, whether consideration of them,
in conjunction with other permissible factors, affected his substantial rights.
Williams, 620 F.3d at 495–96. In addition to Hernandez’ 2013 assault arrests,
the court considered a number of other factors, including:           his assault
conviction against the mother of his child; his felony drug-trafficking
conviction; and two misdemeanor drug convictions. The court also examined
Hernandez’ contention regarding his cultural assimilation. Accordingly, the
court gave significant weight to several valid 18 U.S.C. § 3553(a) factors, and
the record does not show it gave undue weight to Hernandez’ prior arrests. He
has not demonstrated the court would have imposed a lesser sentence had it
not considered his bare arrests; therefore, he has failed to show his substantial
rights were affected. See, e.g., Williams, 620 F.3d at 495 (determining the
court’s “lengthy and weighted discussion of other significant” factors rebutted
defendant’s assertion his substantial rights were affected).
         Hernandez’ substantive-unreasonableness challenge is based on his
claim the court improperly considered his prior arrests in determining his
sentence. Because the court did not commit procedural plain error, Hernandez’



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                                  No. 15-41196

substantive-unreasonableness assertion similarly fails. As stated, the court
considered several valid § 3553(a) factors, and did not commit clear or obvious
error in its consideration of the arrests in declining to depart downward. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).          Accordingly,
Hernandez has not rebutted the presumption of reasonableness attached to his
within-Guidelines sentence. Id.
      AFFIRMED.




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