[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 6, 2007
No. 07-10505 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00339-CR-JEC-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENIO ESTRADA ACOSTA,
a.k.a. Carlos Estrada Medina,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 6, 2007)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Eugenio Estrada Acosta appeals his 60-month prison sentence for illegal
reentry in violation of 8 U.S.C. § 1326. That sentence exceeds what the parties
agree is the applicable guideline range of 37–46 months, resulting from an adjusted
offense level of 17 and a criminal history category of IV.
At the sentence hearing, the district court gave two reasons for selecting the
60-month prison term. The first reason focused on Acosta’s extensive criminal
history, which included: (1) three deportation orders (two of which led to actual
deportations); (2) a prior conviction for illegal reentry; (3) two drug convictions;
(4) a drug-related criminal trespass conviction; (5) failure to appear on a warrant;
and (6) repeated use of false names. It also included Acosta’s May 2003 guilty
plea to simple battery, which resulted from charges that Acosta had harassed a ten-
year-old girl and grabbed her buttocks. After recounting all of these things, the
district court said that it would depart upward from Acosta’s criminal history
category, reasoning that a criminal history category of VI—and its corresponding
guideline range of 51–63 months—would more accurately reflect this “serious
criminal record.” Alternatively, the district court exercised its power under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), to exceed the advisory
guidelines range, citing “the purpose of deterrence and protection of society and all
the other things I am supposed to consider.”
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Acosta’s sole contention on appeal is that the district court violated his due
process rights by increasing his sentence on the basis of the facts underlying the
charges which resulted in his May 2003 guilty plea to battery, which he describes
as “uncorroborated, unreliable allegations that he has [never] admitted to and for
which he has never been convicted.” As he did before the district court, Acosta
cites the reasoning in Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143
(1990), to support his argument that the bare allegations contained in the relevant
charging documents fail to provide a sufficiently reliable understanding of his
actual conduct.
The Taylor decision does not dictate the outcome of this case. To the Taylor
Court, the “practical difficulties and potential unfairness” inherent in relying on the
surrounding facts leading to a defendant’s guilty plea were a factor in answering
the question “whether the sentencing court in applying [the sentence enhancement
specified in 18 U.S.C.] § 924(e) must look only to the statutory definitions of the
prior offenses” that would trigger the enhancement and not other evidence
concerning those offenses. Id. at 600, 601, 110 S. Ct. at 2159. In other words, the
Court was explaining how to apply § 924(e), not how to apply the sentencing
guidelines. It was certainly not addressing the requirements of due process.
Even if we accept, however, the premise that charging documents are less
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reliable than some other sources of evidence, Acosta has not met his burden of
establishing a due process violation. “Where a defendant claims that his due
process rights have been violated by the sentencing court’s reliance on false or
unreliable information, he must make a showing of two elements: (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). At sentencing, Acosta speculated that there might be “a family
situation involved” between himself and the ten-year-old victim of his harassment,
the apparent implication being that this circumstance might somehow lessen the
egregiousness of his conduct. That was the extent of Acosta’s challenge to the
reliability of the information from the police reports. Acosta never actually
challenged the accuracy of the facts reported in presentence investigation report,
which for present purposes means that he has admitted those facts. See United
States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), cert. denied, 127 S. Ct. 2096
(2007).
AFFIRMED.
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