United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 11, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_________________________ Clerk
No. 02-50563
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE FAVELA-FAVELA
Defendant - Appellant
______________________________________________________________________________
On Appeal from the United States District Court for the
Western District of Texas, Pecos Division
(P-02-CR-6-2)
______________________________________________________________________________
Before REYNALDO G. GARZA, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal we review the sentence resulting from defendant Jose Favela-Favela’s
guilty-plea conviction for entering the United States illegally following deportation in violation of
18 U.S.C. § 1326(a). For the following reasons, we affirm the district court’s judgment and the
sentence imposed.
I. FACTUAL AND PROCEDURAL BACKGROUND
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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On December 22, 2001, United States Border Patrol agents stopped a truck at the
checkpoint located south of Marathon, Texas. After being questioned about his citizenship, the
driver of the truck produced valid immigration documents. While the vehicle was stopped, agents
observed what appeared to be people attempting to conceal themselves. Five illegal aliens from
Mexico were found in the truck –two females and one male were found in the cab, and one male
and one female were found in the camper of the truck.
One of the illegal aliens was discovered to be appellant Jose Favela-Favela. After a records
check, it was discovered that Favela-Favela was a convicted and registered sex offender in the
state of Florida. Furthermore, it was learned that Favela-Favela had previously been deported and
did not have permission to re-enter the country.
Approximately forty minutes after the vehicle was stopped, one of the female aliens,
Patricia Marie Rodriguez-Fraire, experienced a seizure. After she was treated for the seizure, it
was learned that she had been the lone female in the camper with Favela-Favela. Rodriguez-Fraire
told investigators that the appellant had withheld her seizure medication and refused to hand it
over until she had sexual intercourse with him. In addition, she stated that Favela-Favela had
raped her after the group had arrived in Ciudad Juarez, and she reported being tied, chained, and
kept away from the group.
Favela-Favela was charged in five counts of an indictment for transporting illegal aliens
and charged in one count for entering the United States illegally after deportation. The defendant
pled guilty to the count for entering the country illegally following deportation. When sentencing
Favela-Favela, the district court departed upward from the guideline range of 46 to 57 months.
The court imposed the statutory maximum sentence of 240 months in prison and also imposed a
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three-year period of supervised release. In addition, the defendant was ordered to pay a $200,000
fine. Favela-Favela filed timely notice of his appeal.
II. DISCUSSION
On appeal, Favela-Favela challenges the district court’s upward departure from the
sentencing guidelines. The district court’s decision to depart from the guideline range is reviewed
for an abuse of discretion. United States v. Delgado-Nunez, 295 F.3d 494, 497 (5th Cir. 2002),
cert. denied, 123 S.Ct. 994 (2003). There is no abuse of discretion if the judge provides
acceptable reasons for departure and the degree of departure is reasonable. Id.
The district court relied upon USSG §§ 4A1.3 and 5K2.9 in departing upward. According
to § 4A1.3, “If reliable information indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that
the defendant will commit other crimes, the court may consider departing from the otherwise
applicable guideline range.” § 4A1.3, p.s. Under § 5K2.9, “If the defendant committed the offense
in order to facilitate or conceal the commission of another offense, the court may increase the
sentence above the guideline range to reflect the actual seriousness of the defendant’s conduct.” §
5K2.9, p.s.
In 1989, Defendant Favela-Favela was convicted in Florida for kidnaping, robbery and
two counts of sexual battery by multiple perpetrators. Favela-Favela was also convicted for two
counts of armed sexual battery, armed kidnaping and armed robbery in connection with another
multiple-perpetrator rape and kidnaping. Accordingly, Favela-Favela is a registered sex offender
in Florida.
In departing upward, the district court stated that it would have preferred to sentence
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Favela-Favela to life in prison because of Favela’s “startling, absolutely unacceptable history of
criminal violence against women.” The district court further noted that the imposed sentence was
intended to keep the defendant “away from the innocent women of this world.” The district court
was of the opinion that “when [Favela-Favela is] on the streets, there’s not a woman that’s safe.”
The defendant argues that the severity of his prior convictions was accounted for by the
16-level increase in his offense level under USSG § 2L1.2 and by his criminal history category of
III. Furthermore, according to Favela-Favela, there is no evidence suggesting that he committed
any sex crimes in connection with the instant immigration offense. He contends that the findings in
the PSR related to the account of the events given by Rodriguez-Fraire were based on the
unreliable hearsay statements of a codefendant.
A PSR generally bears sufficient indicia of reliability to support a district court’s factual
findings, and the district court may adopt facts contained in the PSR without further inquiry if the
facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence.
United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). A district court may consider
hearsay evidence when making sentencing decisions, so long as it has sufficient indicia of
reliability to support its probable accuracy. United States v. Billingsley, 978 F.2d 861, 866 (5th
Cir. 1992). The defendant bears the burden of demonstrating that the PSR is inaccurate. United
States v. Lage, 183 F.3d 374, 383 (5th Cir. 1999).
Although Rodriguez-Fraire was a co-defendant of Favela-Favela, she had nothing to gain
from accusing him of rape. In addition, Rodriguez-Fraire’s contention that the defendant withheld
her medication is supported by the fact that she experienced a seizure soon after being detained.
Furthermore, Favela-Favela’s prior history as a violent sex offender lends credence to Rodriguez-
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Fraire’s account. The factual scenario detailed in the PSR relating to Favela-Favela’s treatment of
Rodriguez-Fraire is not only unacceptable, but unusually horrific by any conceivable standard. We
would also note that the defendant’s egregious criminal history, when considered in conjunction
with the events at issue, provided reasonable grounds for such an upward departure as was sought
by the district court. In short, no abuse of discretion has been shown. See Delgado-Nunez, 295
F.3d at 497.
III. CONCLUSION
For the aforementioned reasons, the judgement of the district court and the sentence
imposed are AFFIRMED.
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