Case: 14-20365 Document: 00512967939 Page: 1 Date Filed: 03/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20365
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 13, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff−Appellee,
versus
YARLEE FREDDY ACOSTA-SALMERON,
Also Known as Yarlee Freddy Acosta,
Also Known as Freddy Jarlee Acosta-Salmeron,
Also Known as Yarlee Fred Acosta,
Also Known as Yarlee Freddy Acosta Salmeron,
Defendant−Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-307-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Yarlee Freddy Acosta-Salmeron pleaded guilty of being an alien found in
the United States after removal. He maintains that his 27-month sentence,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20365
which was above the applicable advisory guideline range, is procedurally and
substantively unreasonable.
Acosta-Salmeron contends that his sentence is procedurally unreasona-
ble because the district court failed to articulate reasons not already accounted
for by the sentencing guidelines. Because he did not object on this basis in the
district court, we review only for plain error. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To establish reversible plain error,
Acosta-Salmeron must show a clear or obvious forfeited error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). We
retain discretion to correct such plain error and will do so only if the error ser-
iously affects “the fairness, integrity, or public reputation of judicial proceed-
ings.” Id. (internal quotation marks omitted). “The district court must ade-
quately explain the sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Mondragon-Santiago, 564 F.3d
at 360 (internal quotation marks and citation omitted). In the case of a non-
guideline sentence, the sentencing court should “carefully articulate the rea-
sons” for finding the sentence to be appropriate. United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005).
The district court considered the mitigating arguments advanced by
Acosta-Salmeron, cited his violent criminal history, and specifically empha-
sized the need to impose a sentence that would afford adequate deterrence,
protect the public from further crimes by Acosta-Salmeron, reflect the serious-
ness of the offense, provide just punishment, and promote respect for the law.
The court provided sufficient reasons for imposing a non-guideline sentence.
See id. Acosta-Salmeron has not shown plain error in connection with this
issue. See Puckett, 556 U.S. at 135.
Acosta-Salmeron did not object to the use of information from the
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No. 14-20365
presentence report (“PSR”), and the reliability of the evidence related to his
criminal history. We thus review his challenge for plain error only. See
Mondragon-Santiago, 564 F.3d at 361.
In sentencing, “the court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial, pro-
vided that the information has sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a), p.s.; see United States v. Betancourt,
422 F.3d 240, 247 (5th Cir. 2005). If information is presented to which the
defendant objects, he must present “competent rebuttal evidence” to demon-
strate that the information “is materially untrue, inaccurate or unreliable.”
United States v. Washington, 480 F.3d 309, 320 (5th Cir. 2007) (internal quota-
tion marks and citation omitted). Moreover, it is “well established that prior
criminal conduct not resulting in a conviction may be considered.” United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Information in a
PSR that is based on the results of a police investigation is sufficiently reliable
to be considered as evidence for sentencing purposes. United States v. Vela,
927 F.2d 197, 201 (5th Cir. 1991).
The district court did not err in its consideration of Acosta-Salmeron’s
prior arrest for sexual assault. Information obtained from state authorities
and included in the PSR provided a thorough factual recitation regarding the
crime, and Acosta-Salmeron offers neither a reason to doubt its reliability nor
rebuttal evidence to dispute its evidentiary basis. See Vela, 927 F.2d at 201;
Washington, 480 F.3d at 320. He does not establish that the court committed
plain error in considering that information. See Puckett, 556 U.S. at 135.
Acosta-Salmeron contends that the sentence is substantively unrea-
sonable based on the district court’s erroneous reliance on criminal convictions
that were already taken into account in the guidelines. He also challenges the
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No. 14-20365
extent of the upward variance.
Although we review the substantive reasonableness of a sentence for
abuse of discretion, see United States v. Fraga, 704 F.3d 432, 437 (5th Cir.
2013), we review Acosta-Salmeron’s claims for plain error because his objection
was not “sufficiently specific to alert the district court to the nature” of the
error he now asserts and did not provide the district court an opportunity to
correct the error.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
For a non-guideline sentence, we consider “the totality of the circumstances,
including the extent of any variance from the Guidelines range.” United States
v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and
citation omitted). We also take into account whether the 18 U.S.C. § 3553(a)
factors support the sentence and give deference to the district court’s deter-
mination that the factors justify the variance. Id. A non-guideline “sentence
is unreasonable if it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper fac-
tor, or (3) represents a clear error of judgment in balancing the sentencing fac-
tors.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (internal quo-
tation marks and citation omitted).
The record belies Acosta-Salmeron’s claim that the court did not account
for a factor that should have received significant weight, gave significant
weight to an irrelevant or improper factor, or committed a clear error of judg-
ment in balancing the factors. See id. In addition, the court was not precluded
from considering factors, such as prior convictions, that were already incorpor-
ated into the guideline calculation. See Brantley, 537 F.3d at 350. Acosta-
Salmeron’s arguments essentially amount to a disagreement with the weigh-
ing of the § 3553(a) factors, which is insufficient to show abuse of discretion.
See Peltier, 505 F.3d at 393-94. We do not reweigh the factors and reexamine
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their relative import, nor will we reverse on the basis that we could reasonably
conclude that a different sentence was proper. See Gall v. United States, 552
U.S. 38, 51 (2007). Finally, the extent of the variance, six months, was not
significant compared to other more substantial variances affirmed by this
court. See, e.g., United States v. Key, 599 F.3d 469, 475−76 (5th Cir. 2010).
Under the totality of the circumstances, including the significant defer-
ence given to a district court’s consideration of the § 3553(a) factors and its
reasons for the sentence, Acosta-Salmeron has failed to demonstrate that the
sentence is substantively unreasonable. See Brantley, 537 F.3d at 349. Accord-
ingly, the court did not abuse its discretion, much less plainly err.
AFFIRMED.
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