     Case: 15-40479      Document: 00513436127         Page: 1    Date Filed: 03/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40479
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 23, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ALBERTO CHAVEZ-SUAREZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:14-CR-1622-5


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Alberto Chavez-Suarez pled guilty pursuant to a plea agreement to one
count of conspiracy to possess with intent to distribute 100 kilograms or more
of marijuana. The district court sentenced Chavez-Suarez to 60 months of
imprisonment and a four-year term of supervised release. Chavez-Suarez
argues that the district court committed reversible error when it found that he
was “Ramon Carrillo Franco,” the individual convicted of the 2007 California


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40479

offenses listed in the presentence report. He contends that the information
contained in the report was nonspecific and unreliable. Chavez-Suarez asserts
this error was not harmless because it rendered him ineligible for the safety
valve reduction under U.S.S.G. § 5C1.2. The Government has filed a motion
to supplement the record on appeal with documents related to the 2007
California convictions.
      We review the district court’s application of the Sentencing Guidelines
de novo, and we review factual findings for clear error.        United States v.
Villanueva, 408 F.3d 193, 202–03 & n.9 (5th Cir. 2005).            Facts used to
determine a sentence must be supported “by a preponderance of the relevant
and sufficiently reliable evidence.” United States v. Alaniz, 726 F.3d 586, 619
(5th Cir. 2013). As long as a factual finding is plausible in light of the record
as a whole, it is not clearly erroneous and should be upheld. Id. at 618.
      A presentence report typically “bears sufficient indicia of reliability to be
considered as evidence by the sentencing judge in making factual
determinations.” United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010).
Mere objections to the facts in the presentence report do not qualify as
competent rebuttal evidence. Alaniz, 726 F.3d at 619. The defendant has the
burden of presenting evidence to show that the facts in the report are
inaccurate or materially untrue. United States v. Cervantes, 706 F.3d 603,
620–21 (5th Cir. 2013).
      Chavez-Suarez has not established that the district court committed
clear error when it found that Chavez-Suarez was the individual convicted of
the California offenses. See Villanueva, 408 F.3d at 202-03 & n.9. Chavez-
Suarez’s admitted use of the alias “Ramon Carrillo Franco,” his concession to
living in Redwood City, and the listing of that alias in the state case establish
by a preponderance of the evidence that Chavez-Suarez committed the



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                                  No. 15-40479

offenses.   See Alaniz, 726 F.3d at 619.     In addition, the probation officer
explained that a search of the National and California Crime Information
Center revealed that the Franco alias had been used by Chavez-Suarez.
Moreover, the felony complaint and abstract of judgment relied upon by the
probation officer have been deemed by us as reliable sources for proving the
fact of a prior conviction. See United States v. Gomez-Alvarez, 781 F.3d 787,
794–96 (5th Cir. 2015); United States v. Moreno-Florean, 542 F.3d 445, 449 n.1
(5th Cir. 2008).
      Moreover, Chavez-Suarez failed to provide any rebuttal evidence to the
information presented in the presentence report. Outside of mere objections
to the reliability, accuracy, and prejudicial nature of the information, he did
not submit any evidence to contradict the findings of the probation officer.
These objections alone were insufficient to rebut the information and, thus, the
district court was free to rely on the presentence report and its factual findings
therein. See Alaniz, 726 F.3d at 619.
      In light of the foregoing discussion, the motion to supplement the record
on appeal is DENIED, as the records are irrelevant to the issue on appeal.
      The judgment of the district court is AFFIRMED.




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