Case: 14-11121 Document: 00513074504 Page: 1 Date Filed: 06/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11121
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 10, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE DAVID CORTEZ-GUZMAN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:14-CR-20-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Jose David Cortez-Guzman (Cortez) pleaded guilty to a charge of illegal
reentry following deportation. The district court imposed an upward variance
of 18 months. Cortez challenges his sentence as substantively unreasonable,
arguing that the district court, in determining his sentence, considered his
bare arrest record and stated that his illegal reentry conviction stemmed from
a Texas conviction for unlawfully carrying a weapon. Cortez also challenges
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11121
the imposition of special conditions of supervised release: one condition
requires that he abstain from using alcohol and other intoxicants during the
term of supervision; the other condition requires him to participate in
substance abuse treatment.
Because these specific arguments were not raised in the district court,
our review is for plain error only. Puckett v. United States, 556 U.S. 129, 135
(2009); United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). To show
plain error, the appellant must show a forfeited error that is clear or obvious
and that affects his substantial rights. Id. If the appellant makes such a
showing, we have the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
A district court may not rely on a bare arrest record that refers only to
the fact of an arrest and does not include information concerning the facts and
circumstances of the conduct resulting in the defendant’s arrest. United States
v. Windless, 719 F.3d 415, 420 (5th Cir. 2013). In the absence of facts that have
a “sufficient indicia of reliability,” the district court cannot consider the
information at sentencing whether or not the defendant objects or introduces
rebuttal evidence. Id. (citation omitted).
Cortez has not established plain error regarding his claim that the
district court relied on his “bare arrest record” when imposing sentence. The
record shows that Cortez was arrested 22 times by immigration officials, and
four of the arrests resulted in deportations. The district court explained that
the sentence was based on Cortez’s history and characteristics and, in
particular, the fact that he had been apprehended 22 times by immigration
officials. Because four of the arrests resulted in deportation, those arrests were
supported by sufficient evidence and constituted reliable grounds for the
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No. 14-11121
above-guidelines sentence. See United States v. Lopez-Velasquez, 526 F.3d 804,
807 (5th Cir. 2008).
In addition, Cortez has not shown that the district court’s consideration
of the arrests in conjunction with other permissible factors affected his
substantial rights or seriously affected the fairness and integrity of the judicial
proceedings. United States v. Williams, 620 F.3d 483, 495 (5th Cir. 2010). The
district court gave significant weight to the factor of deterrence in light of the
record evidence that Cortez’s prior sentence for illegal reentry had not deterred
him from reentering the United States. Further, Cortez’s 2012 deportations,
within months of each other, support the district court’s finding that he had no
respect for the law. In determining Cortez’s sentence, the district court
identified valid § 3553(a) factors and did not give undue weight to Cortez’s
prior arrests.
Next, Cortez asserts that the district court erred by stating that his
illegal reentry conviction stemmed from a state weapon conviction rather than
a state drug conviction. Cortez fails to show that this error justifies relief.
United States v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012).
Regarding his challenges to the special conditions of supervised release,
Cortez cannot show error, plain or otherwise. Cortez has a record of illegal
substance abuse, as shown by his conviction for possession of cocaine. Thus,
the district court did not err by ordering him to abstain from using alcohol
during his term of supervised release. See United States v. Ferguson, 369 F.3d
847, 853 (5th Cir. 2004). Cortez has failed to brief adequately and therefore
has abandoned his claim that the district court erred by imposing substance
abuse treatment as a special condition of supervised release. See United States
v. Charles, 469 F.3d 402, 408 (5th Cir. 2006); Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
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No. 14-11121
AFFIRMED.
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