[DO NOT PUBLISH]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
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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.
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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.
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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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