24 F.4th 477
5th Cir.2022Background:
- Defendant Heriberto Zarco-Beiza pleaded guilty to illegal re-entry; no plea agreement. Presentence Investigation Report (PSR) listed multiple prior convictions and a pending June 5, 2020 DWI charge (alias David Hurtado).
- The Guidelines range was 10–16 months; probation officer noted criminal-history category may under-represent conduct because of remote convictions and pending charge.
- Zarco-Beiza objected in writing and at sentencing, arguing against upward departure and that arrests/charges are presumed innocent and cannot be treated as reliable sentencing facts.
- The district court imposed an upward variance to 65 months, citing repeated illegal re-entries, prior sentences for immigration offenses, other convictions, and the pending DWI; the written reasons explicitly referenced the pending DWI.
- On appeal Zarco-Beiza argued the sentence was substantively unreasonable because the court relied on a bare arrest/charge in the PSR; the Fifth Circuit affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district court may rely on a defendant's immigration-history to justify an upward variance despite the Guidelines' treatment of illegal re-entry | United States: sentencing court may give extra weight to factors even if the Guidelines also reflect them | Zarco-Beiza: reliance on immigration history improperly discounts the Sentencing Commission's policy | Held: Court affirmed; district court may give extra weight to guideline-covered factors (citing Key) |
| Whether the district court improperly relied on a "bare arrest"/pending DWI charge, and if that error was reversible | United States: defendant failed to preserve the specific bare-arrest claim (so plain-error review), and any error was harmless | Zarco-Beiza: PSR’s pending DWI was a bare arrest record; the court relied on it and that made the sentence substantively unreasonable | Held: Court held reliance on the bare arrest was error and plain, but defendant failed plain-error prongs (no reasonable probability of a lesser sentence because court primarily relied on immigration history); sentence affirmed |
Key Cases Cited:
- Gall v. United States, 552 U.S. 38 (standard for reviewing substantive reasonableness of sentences)
- Holguin-Hernandez v. United States, 140 S. Ct. 762 (preservation requirement for substantive-reasonableness claims)
- United States v. Key, 599 F.3d 469 (5th Cir.) (district court may give extra weight to circumstances already in the Guidelines)
- United States v. Harris, 702 F.3d 226 (5th Cir.) (defines "bare arrest record" and prohibits reliance absent indicia of reliability)
- United States v. Windless, 719 F.3d 415 (5th Cir.) (sentencing facts must be proved by a preponderance; factual recitation with indicia of reliability can cure a bare arrest)
- United States v. Johnson, 648 F.3d 273 (5th Cir.) (it is error to rely on bare arrests at sentencing)
- United States v. Foley, 946 F.3d 681 (5th Cir.) (pending charges in a PSR can constitute a bare arrest record)
- United States v. Williams, 620 F.3d 483 (5th Cir.) (plain-error framework and prejudice burden on appellant)
- United States v. Olano, 507 U.S. 725 (sets out the plain-error test)
- Illinois v. Gates, 462 U.S. 213 (distinguishes probable cause and preponderance standards)