                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-10157                 JULY 14, 2010
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                             D.C. Docket No. 1:09-cr-20633-UU-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                            versus

DAVID ST. REMY,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                        (July 14, 2010)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       David St. Remy appeals his 46-month sentence, which is at the low end of

the guideline range, for illegally re-entering the United States after having been

removed. 8 U.S.C. § 1326(a)(2), (b)(2). On appeal, St. Remy argues the district

court violated his due process rights by declining to grant a downward variance

based on a Bahamian warrant for his arrest in connection with a murder charge

and his inclusion on a most-wanted list. Specifically, he contends the court:

(1) improperly inferred he was guilty of murder, (2) improperly admitted the

documents into the record because they were unreliable, and (3) relied on this

unreliable information as the basis for his sentence. After review for plain error,

we affirm St. Remy’s sentence.1

       Under 18 U.S.C. § 3553(a), a sentencing court is required to consider “the

history and characteristics of the defendant” in imposing a sentence. 18 U.S.C.

§ 3553(a)(1). “No limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing an

appropriate sentence.” 18 U.S.C. § 3661. Nonetheless, “due process assures the


       1
          Because St. Remy failed to argue below that the court’s reliance on the Bahamian
search warrant and most-wanted list violated his due process rights, review is for plain error only.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Plain error requires the
defendant to show: (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

                                                 2
defendant he will be given adequate notice and an opportunity to contest the facts

relied upon to support his criminal penalty.” United States v. Satterfield, 743 F.2d

827, 840 (11th Cir. 1984). “The sole interest being protected is the right not to be

sentenced on the basis of invalid premises or inaccurate information.” Id. To

establish a due process violation based on the court's reliance on false or

unreliable information, the defendant must show: “(1) that the challenged evidence

is materially false or unreliable, and (2) that it actually served as the basis for the

sentence.” United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984).

       St. Remy has failed to show that the district court plainly erred in denying

his request for a downward variance. First, he has failed to show the foreign arrest

warrant and the most-wanted list were unreliable because he never filed an

objection to the PSI setting forth this information, and he did not contest their

reliability or validity at sentencing. Accordingly, these facts are deemed admitted

by St. Remy. See United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009)

(“Facts contained in a PSI are undisputed and deemed to have been admitted

unless a party objects to them before the sentencing court ‘with specificity and

clarity.’”).

       Second, nothing in the record suggests the district court inferred St. Remy

was guilty of the murder and relied on this inference to impose a harsher sentence.

                                            3
The district court explicitly stated it did not know what happened, but found it

difficult to accept St. Remy was a reformed man. This does not constitute plain

error because a district court is required to consider a person’s history and

characteristics in imposing a sentence and is permitted to rely on any information

concerning a person’s character as long as it is not materially false or unreliable.

Moreover, the court did not enhance St. Remy’s sentence based on the fact that he

was wanted for murder. Rather, the district court declined to grant a downward

variance based on many factors, including St. Remy’s criminal history that

included “a lot” of “very serious crimes.” Accordingly, St. Remy has failed to

establish that his due process rights were violated or that the district court

committed plain error.

      AFFIRMED.




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