United States v. Pacheco-Flores

United States Court of Appeals
for the Fifth Circuit

No. 20-40043
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Kevin Omar Pacheco-Flores,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-1643-1

Before Haynes, Willett, and H
O, Circuit Judges.
Per Curiam:*
Kevin Omar Pacheco-Flores pleaded guilty to illegal reentry after
deportation, in violation of 8 U.S.C. § 1326(a), and he was sentenced above
the advisory guidelines range to 15 months of imprisonment. On appeal,
Pacheco-Flores argues that his sentence was substantively unreasonable

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
August 25, 2020

Lyle W. Cayce
Clerk
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No. 20-40043
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because the district court gave undue weight to unadjudicated allegations of
prior felony offenses described in the presentence report, which he contends
lacked sufficient indicia of reliability. Additionally, he contends that his 15-
month sentence was substantively unreasonable because it was more than
double the advisory guidelines range of one to seven months of
imprisonment, because the Government did not recommend a sentence
above the guidelines range, and because he had been previously convicted of
only a misdemeanor offense of driving under the influence.
We review the substantive reasonableness of Pacheco-Flores’s
sentence under a deferential abuse of discretion standard. See Gall v. United
States, 552 U.S. 38, 51 (2007). A non-guidelines sentence will be found
substantively unreasonable when it “(1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006).
A presentence report generally bears sufficient indicia of reliability to
be considered by the sentencing judge in making factual determinations.
United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). In such a case, the
defendant has the burden of presenting rebuttal evidence to show that the
information is “materially untrue, inaccurate or unreliable.” Id. (internal
quotation marks and citation omitted). “It is well-established that prior
criminal conduct not resulting in a conviction may be considered by the
sentencing judge” in a determination whether an upward variance under 18
U.S.C. § 3553(a) is warranted. United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir. 2008).
In light of the details provided in the presentence report about
Pacheco-Flores’s prior unadjudicated offenses and in light of Pacheco-
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Flores’s failure to rebut that information, Pacheco-Flores has not shown that
the district court imposed a substantively unreasonable sentence when it
deemed the descriptions of the arrests to be reliable or when it gave them
weight. See Harris, 702 F.3d at 230; Smith, 440 F.3d at 708. Additionally,
he has not shown that the length of his above-guidelines sentence was
substantively unreasonable. See Lopez-Velasquez, 526 F.3d at 805-07.
AFFIRMED.
Case: 20-40043 Document: 00515540338 Page: 3 Date Filed: 08/25/2020