     Case: 17-50169      Document: 00514370590         Page: 1    Date Filed: 03/02/2018




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

                                    No. 17-50169                                FILED
                                  Summary Calendar                          March 2, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAMON ORTEGA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:16-CR-374-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ramon Ortega appeals from the sentence imposed following his guilty
plea conviction for aiding and abetting the possession with intent to distribute
marijuana. The district court imposed an upward variance to 48 months of
imprisonment based on his criminal history, including both convictions and
arrests that did not result in convictions.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50169

      On appeal, Ortega argues that the district court erred by relying on
(1) bare arrest records regarding his two prior arrests for contempt of court and
(2) the factual account underlying his 2013 battery offense, which was
ultimately dismissed. Ortega objected to his sentence on the ground that the
district court placed too much emphasis on his 2013 battery offense, but he did
not reference his prior arrests for contempt of court or challenge the reliability
of the information underlying his 2013 battery offense. Because he failed to
challenge the district court’s reliance on his prior arrests for contempt of court,
he failed to preserve that issue for appeal. See United States v. Neal, 578 F.3d
270, 272 (5th Cir. 2009). We need not decide whether Ortega has preserved
his challenge to the reliability of the information underlying his 2013 battery
offense because he has not shown error even under de novo review.
      Even if we were to assume that the district court erred by merely
mentioning Ortega’s two prior arrests for contempt of court before it imposed
the above-guidelines sentence, Ortega has not shown that the error affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
The district court’s stated basis for the upward variance did not include those
arrests and instead referenced permissible factors.
      The presentence report (PSR) provided factual details for Ortega’s 2013
battery offense that included both Ortega’s and the victim’s accounts of the
offense provided to police officers. Ortega did not rebut the PSR’s factual
description or otherwise demonstrate that the description was unreliable. See
United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). The district court
therefore did not err by adopting and considering the PSR’s description of
Ortega’s 2013 battery offense without further inquiry or explanation. See
United States v. Williams, 689 F. App’x 810, 811 (5th Cir. 2017); United States
v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014). Accordingly, Ortega has not



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                                 No. 17-50169

shown that the district court committed error, plain or otherwise, in this
regard.
      During the pendency of this appeal, the district court granted the
Government’s unopposed motion to modify one of Ortega’s special conditions of
supervised release in order to conform the written judgment to the oral
pronouncement. Ortega’s appellate challenges to that special condition are
moot in light of that modification. See United States v. Heredia-Holguin, 823
F.3d 337, 340 (5th Cir. 2016); United States v. Miller, 343 F. App’x 973, 973-74
(5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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