     Case: 11-10997    Document: 00512078102      Page: 1   Date Filed: 12/10/2012




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

                                                                    FILED
                                                                December 10, 2012

                                  No. 11-10997                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee
v.

NICHOLAS HARRIS,

                                            Defendant - Appellant



                 Appeal from the United States District Court
                      for the Northern District of Texas



Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
      Nicholas Harris appeals the 132-month sentence imposed upon his
conviction of attempted possession with intent to distribute cocaine.          He
contends that: (1) the district court committed procedural error by improperly
considering his prior arrest record; (2) the facts underlying his sentence were not
proven to a jury beyond a reasonable doubt; and (3) the district court erred by
not reducing his offense level for acceptance of responsibility. For the reasons
set forth below, we AFFIRM Harris’s sentence.
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                                  No. 11-10997

                                        I.
      Harris pleaded guilty to attempted possession with intent to distribute
cocaine. The pre-sentence report (“PSR”) calculated a total offense level of
thirty, which included a two-level reduction for acceptance of responsibility. The
PSR placed Harris in criminal history Category III based on his prior criminal
convictions. The PSR included Harris’s arrest record, which contained five
arrests dating back to 1999 that resulted in no prosecution. The PSR also
included information about the underlying facts of those arrests based on the
arresting officers’ police reports. For at least some of the arrests, the underlying
information was provided by contemporaneous observations by the police
officers. In at least two cases, the PSR noted that the charges were dropped
because the victims declined to pursue prosecution. For one arrest, the PSR’s
description does not mention a police report. Harris filed no objections to the
PSR prior to sentencing, for either its factual assertions or its Guidelines
calculations.
      At sentencing, Harris argued that his criminal history category, while
technically accurate, was overstated because one of his prior convictions was
almost old enough not to be considered in computing his criminal history score.
The Government asserted that there was no mitigating value to Harris’s having
one conviction that was “almost too old” to be counted, and that Harris’s criminal
history was actually worse than what was captured by the Guidelines
calculation. The district court labeled it a “close call[],” noting the existence of
two older convictions that were listed in the PSR, but not counted in the formula,
and “at least four . . . assault charges where [Harris] was arrested for assaulting
out of domestic violence situations that weren’t counted at all because they were
dropped because the victims didn’t want to prosecute anymore.” The court also
told Harris:



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      You have been in and out of the criminal system a long time. And
      a lot of those criminal activities . . . that you have been involved in
      weren’t counted as far as criminal history points. So I think even if
      it was a II, this wouldn’t be the kind of case where you would be
      sentencing at the bottom end of the Guideline range with as many
      convictions [as you have, and] as many arrests as you have . . . that
      weren’t charged involving violence. You are being violent. Some of
      those women were pregnant with your child when you were
      assaulting them.
These comments by the district court provide the basis for Harris’s appeal.
      The court determined that the PSR’s recommendations were appropriate,
with a Guidelines range of 121 to 151 months. The court imposed a sentence
near the middle of the range: 132 months.           Harris then objected to his
“unadjudicated priors” “being considered as a part of the basis of the
reasonableness of the sentence.”
                                        II.
      Federal criminal sentences are reviewed for reasonableness under a
bifurcated approach, “[r]egardless of whether the sentence imposed is inside or
outside the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
First, the court determines whether the district court committed any “significant
procedural error[s],” such as improperly calculating the Guidelines range,
treating the Guidelines as mandatory, or selecting a sentence based on
erroneous factors. Id. Second, assuming no procedural error occurred, the court
reviews for substantive reasonableness, taking into account the totality of the
circumstances. See United States v. Delgado-Martinez, 564 F.3d 750, 752–53
(5th Cir. 2009).
      We review claims of procedural error de novo. United States v. Cisneros-
Guttierez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s factual findings
are reviewed for clear error. United States v. Valencia, 44 F.3d 269, 272 (5th Cir.




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                                       No. 11-10997

1995). A sentence within the Guidelines range may be presumed substantively
reasonable. Gall, 552 U.S. at 51.
       Harris argues that the district court committed procedural error by
considering his “bare arrest record.” The term “bare arrest record,” in the
context of a PSR describes the reference to the mere fact of an arrest—i.e. the
date, charge, jurisdiction and disposition—without corresponding information
about the underlying facts or circumstances regarding the defendant’s conduct
that led to the arrest. See United States v. Williams, 620 F.3d 483, 493 n.9 (5th
Cir. 2010) (citing United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009)). The
mere fact of an arrest, by itself, is not reliable evidence of guilt. See United
States v. Robert Jones, 444 F.3d 430, 434 & n.10 (5th Cir. 2006). Thus, our
precedent makes it clear that the consideration of the fact of prior arrests,
without more, is prohibited. See United States v. Johnson, 648 F.3d 273, 277
(5th Cir. 2011) (“[W]ithout sufficient indicia of reliability, a court may not factor
in prior arrests when imposing a sentence.”); United States v. Earnest Jones, 489
F.3d 679, 681–82 (5th Cir. 2007); Robert Jones, 444 F.3d at 434 (“[I]t was error
to take the mere fact of prior arrests into account.”); cf. U.S.S.G. § 4A1.3(a).
       The question then becomes whether the district court here ran afoul of our
precedent. We note that the PSR is required to include the defendant’s arrest
history for the court’s benefit. See Fed. R. Crim. P. 32(d)(2). While the arrest
history may contain merely the fact of arrest, it may also include a specific
description of the defendant’s conduct leading to the arrest. In Johnson, we
noted that our precedent “left room for a court to consider arrests if sufficient
evidence corroborates their reliability.”1 648 F.3d at 277. This rule is consistent


       1
         In Johnson, we concluded that it was procedural error to rely on the defendant’s
arrest record where the PSR “listed only the most basic information about the[] prior arrests:
the date, the charges, the agency out of which the arrest was processed, and the disposition.”
648 F.3d at 274; see id. at 275 (noting also that “[t]he PSR contained no information about the
underlying facts or circumstances of the arrests and no explanation of why [the defendant] was

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with the constitutional due process requirement that “sentencing facts must be
established by a preponderance of the evidence.” Id.
       When making factual findings for sentencing purposes, district courts
“may consider any information which bears sufficient indicia of reliability to
support its probable accuracy.” United States v. Solis, 299 F.3d 420, 455 (5th
Cir. 2002) (internal quotation marks and citation omitted). Generally, a PSR
“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) (quoting United States v. Trujillo, 502 F.3d 353,
357 (5th Cir. 2007)). A district court, therefore, “may adopt the facts contained
in a [PSR] without further inquiry if those facts have an adequate evidentiary
basis with sufficient indicia of reliability and the defendant does not present
rebuttal evidence or otherwise demonstrate that the information in the PSR is
unreliable.”2 Trujillo, 502 F.3d at 357 (citation omitted).
       When faced with facts contained in the PSR that are supported by an
adequate evidentiary basis with sufficient indicia of reliability, a defendant must
offer rebuttal evidence demonstrating that those facts are “materially untrue,
inaccurate or unreliable.” United States v. Huerta, 182 F.3d 361, 364–65 (5th



not prosecuted”). Johnson presents a clear example of a district court’s reliance on the mere
fact of a prior arrest. In comparison, Harris’s PSR contained specific information about the
conduct and circumstances relating to the arrests, including why prosecution did not result.
In at least one instance, the arresting officers witnessed the actual assault. Because Harris’s
PSR included the factual underpinnings for the prior unadjudicated arrests—not merely the
fact that he had been arrested, but not convicted, for an offense—this case does not involve
improper reliance on the mere fact of prior arrests.
       2
         We note, however, that mere inclusion in the PSR does not convert facts lacking an
adequate evidentiary basis with sufficient indicia of reliability into facts a district court may
rely upon at sentencing. See United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (“The
PSR . . . cannot just include statements, in hope of converting such statements into reliable
evidence, without providing any information for the basis of the statements.”); United States
v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993) (“Bald, conclusionary statements do not
acquire the patina of reliability by mere inclusion in the PSR.”).

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                                       No. 11-10997

Cir. 1999) (internal quotation marks and citation omitted). Mere objections to
such supported facts are generally insufficient.3 United States v. Rodriguez, 602
F.3d 346, 363 (“Because no testimony or other evidence was submitted to rebut
the information in the PSR, the district court was free to adopt the PSR’s
findings without further inquiry or explanation.”).
       To summarize, our precedent is clear that the consideration of the mere
fact of a prior arrest is prohibited. See, e.g., Johnson, 648 F.3d at 277–78
(“[W]ithout sufficient indicia of reliability, a court may not factor in prior arrests
when imposing a sentence. . . . We have long recognized that ‘an arrest, without
more, is quite consistent with innocence.’” (quoting United States v. Labarbera,
581 F.2d 107, 109 (5th Cir. 1978)). When the PSR also contains a factual
recitation of the defendant’s conduct that gave rise to a prior unadjudicated
arrest, the district court must determine whether that factual recitation has an
adequate evidentiary basis with sufficient indicia of reliability. See Trujillo, 502
F.3d at 357. If the factual recitation lacks sufficient indicia of reliability, then
it is error for the district court to consider it at sentencing—regardless of
whether the defendant objects or offers rebuttal evidence.
       Alternatively, if the factual recitation possesses sufficient indicia of
reliability, then a district court may consider it at sentencing.                     In this
circumstance, the defendant may object and offer rebuttal evidence challenging
the truthfulness, accuracy, or reliability of the evidence supporting the factual
recitation in the PSR. Requiring a defendant to object to the accuracy or
reliability of the factual recitation puts the district court on notice that those




       3
        While mere objections are generally insufficient, such objections may sufficiently alert
the district court to questions regarding the reliability of the evidentiary basis for the facts
contained in the PSR, particularly in circumstances where the facts are based solely upon an
arresting officer’s uncorroborated description of the events justifying the defendant’s arrest.

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                                     No. 11-10997

facts are contested.4 The district court must then weigh the competing evidence
and determine whether the factual recitation is established by a preponderance
of the evidence.
       In this case, Harris did not object to the contents of the PSR or offer
rebuttal evidence on any of the incidents in his criminal history. His objection
during sentencing was that the district court’s mention of the prior arrest record
was procedural error. He did not argue that the detailed factual information
supporting the arrests was false, inaccurate, or unreliable. Accordingly, because
the factual recitations of Harris’s conduct underlying his prior unadjudicated
arrests had an adequate evidentiary basis with sufficient indicia of reliability,
the district court did not commit procedural error by considering them at
sentencing in the absence of any attempt by Harris to call into question the
reliability of the factual recitations.
       Because the district court’s consideration of the facts underlying Harris’s
prior arrests was not procedural error, we turn next to a review of the sentence
for substantive reasonableness. See Gall, 552 U.S. at 48–51. The record as a
whole shows that Harris had a significant criminal history of convictions. The
presumption of reasonableness applies to Harris’s within-Guidelines sentence,
and Harris has not overcome that presumption. See Rita v. United States, 551
U.S. 338, 347 (2007).
       Finally, Harris also raised two issues that he concedes are foreclosed by
our precedent. He contends his offense level should have been reduced by an
additional point under § 3E1.1(b) for acceptance of responsibility because the



       4
         Federal Rule of Criminal Procedure 32 requires that a defendant be given a copy of
his PSR at least 35 days before sentencing. Fed. R. Crim. P. 32(e)(2). Each party then has
fourteen days to object to “material information, sentencing guideline ranges, and policy
statements contained in or omitted from the report,” Rule 32(f)(1), and at least seven days
before the sentencing the probation officer must submit a final version of the PSR to the
parties, stating any unresolved objections, Rule 32(g).

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government improperly refused to file the requisite motion for the reduction.
This claim is foreclosed by United States v. Newson, 515 F.3d 374, 378 (5th Cir.
2008) (concluding that the government may decline to move for the additional
reduction based on the defendant’s refusal to timely waive his right to appeal).
Harris also contends his sentence violated his Sixth Amendment right to a jury
trial and his Fifth Amendment rights to indictment and proof beyond a
reasonable doubt, because facts relevant to sentencing were found by the judge
rather than by a jury. This claim was deemed foreclosed in United States v.
Rhine, 583 F.3d 878, 891 & n.50 (5th Cir. 2009).
                                      III.
      For the foregoing reasons, Harris’s sentence is AFFIRMED.




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