IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30215
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK H. BETHLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
(98-CR-159-ALL-C)
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August 20, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Frank H. Bethley appeals his sentence,
specifically complaining of a two-level upward departure in his
offense level based on two arrests for which he was not convicted.
We previously vacated Bethley’s sentence and remanded the case for
resentencing, holding that the departure was improper because the
district court failed to find Bethley guilty of the unadjudicated
offenses by a preponderance of the evidence. United States v.
Bethley, No. 99-30546 (5th Cir. Oct. 17, 2000). On remand, the
district court reimposed the same upward departure after finding by
*
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that this opinion should not be published and is not precedent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.
a preponderance of the evidence that Bethley had committed the
offenses. On appeal, Bethley asserts that the district court
relied on an improper basis to depart from the applicable
Sentencing Guideline range because it relied only on the pre-
sentence report (PSR) to determine the facts regarding the
underlying offenses. Generally, a PSR bears sufficient indicia of
reliability to be considered as evidence at sentencing. United
States v. Alford, 142 F.3d 825, 831-32 (5th Cir. 1998). We have
never stated that the report cannot be used for determining the
guilt of an individual who was arrested but not convicted. See
United States v. Cantu-Dominguez, 898 F.2d 968, 970-71 (5th Cir.
1990).
Bethley also contends that the district court improperly
concluded that the charges were dismissed after he pleaded guilty
to an offense in federal court, because he actually was convicted
by a jury of the federal charges. Bethley failed to object to this
factual finding in the district court, so we review it for plain
error. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994)(en banc). Bethley cannot show that any error by the district
court in its determination of the disposition of the prior federal
proceeding affected his substantial rights. The sentence imposed
by the district court is
AFFIRMED.
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