583 F. App'x 375
5th Cir.
2014

Rafael Martinez RODRIGUEZ, also known as Rafael Martinez, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 13-60625

United States Court of Appeals, Fifth Circuit.

Oct. 28, 2014.

375

Summary Calendar.

Raed Gonzalez, Esq., Senior Attorney, Gonzalez Olivieri, L.L.C., Houston, TX, for Petitioner.

Scott Michael Marconda, Esq., Trial Attorney, Tangerlia Cox, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit Judges.

PER CURIAM: *

Rafael Martinez Rodriguez (Martinez), a native and citizen of Mexico, petitions for review of both the order of the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings and his motion to reconsider that denial. He does not challenge the BIA‘s holding that his motion to reopen was untimely under 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c) but, rather, argues only that the BIA abused its discretion by holding that (1) the departure bar set forth in § 1003.2(d) prevented it from exercising its sua sponte authority to reopen and (2) even if the departure bar did not apply, sua sponte reopening pursuant to § 1003.2(a) was not warranted.

Contrary to Martinez‘s assertions, this court lacks jurisdiction to consider his challenge to the BIA‘s decision not to exercise its sua sponte authority to reopen. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir.2008). As Martinez‘s motion to reopen was time barred, we need not address his arguments regarding the BIA‘s application of the departure bar. See id. His petitions for review are DISMISSED for lack of jurisdiction.

UNITED STATES of America, Plaintiff-Appellee v. Oscar TURCIOS-RIVERA, Defendant-Appellant.

No. 14-40111

United States Court of Appeals, Fifth Circuit.

Oct. 28, 2014.

375

Summary Calendar.

James Lee Turner, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM: *

Oscar Turcios-Rivera pleaded guilty to one count of illegal reentry following deportation. The presentence report (PSR) recommended an advisory guidelines range of 27 to 33 months of imprisonment. In imposing a 45-month term of imprisonment after considering the 18 U.S.C. § 3553(a) factors, the district court noted that Turcios-Rivera‘s 1991 conviction for lewd and lascivious acts was not counted in the criminal history score, that he had reentered the United States within 5 months of being deported following a 24-month sentence for illegal reentry, and that he had “other criminal conduct” against his stepson.

On appeal, Turcios-Rivera challenges the above guidelines sentence as substantively unreasonable because the district court relied on an improper factor, his 2004 arrest, and made an error in judgment in balancing the § 3553(a) sentencing factors because it overvalued the significance of his 1991 conviction. We review sentences for substantive reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Smith, 440 F.3d 704, 708 (5th Cir.2006).

With respect to the 2004 arrest, Turcios-Rivera did not object to the PSR containing information about the assault in question.1 To the contrary, when asked by the district court if there were “any mistakes anywhere in this report,” he said “No, everything‘s perfect, Your Honor.” At sentencing, a district court may not consider a bare arrest record contained in a PSR. United States v. Harris, 702 F.3d 226, 229 (5th Cir.2012), cert. denied, — U.S. —, 133 S.Ct. 1845, 185 L.Ed.2d 850 (2013). However, in the absence of any indication that the information is not reliable, the court can consider specific information provided in the PSR. See Harris, 702 F.3d at 230-31 & n. 1. Here, the PSR contained specific information from the offense report that Turcios-Rivera struck his stepson “in the head and face several times leaving cuts” on his face. It thus bore a sufficient indicia of reliability to be considered unless disputed. See id. On this record, the district court did not err in considering the 2004 arrest.

Turcios-Rivera also argues that the district court gave undue weight to his 1991 conviction and is asking this court to re- weigh the sentencing factors. The sentencing court is in the best position to find facts and judge their import. See Gall, 552 U.S. at 51; United States v. Scott, 654 F.3d 552, 555 (5th Cir.2011). The 45-month sentence, which was 12 months above the top of the sentencing guidelines range of 27 to 33 months of imprisonment, is not substantively unreasonable. See Smith, 440 F.3d at 708, 710.

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee v. Valentin MONJARAS-PICHARDO, Defendant-Appellant.

No. 13-11134

United States Court of Appeals, Fifth Circuit.

Oct. 28, 2014.

377

Summary Calendar.

James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.

Christian Thomas Souza, Attorney, Dallas, TX, for Defendant-Appellant.

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM: *

Valentin Monjaras-Pichardo pleaded guilty to conspiracy to possess with the intent to distribute 100 grams or more of a mixture containing heroin. He was sentenced within the guidelines range to 262 months of imprisonment, to be followed by four years of supervised release. On appeal, Monjaras-Pichardo argues that the district court erred in applying a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of distributing heroin. Because Monjaras-Pichardo preserved this issue by objecting in the district court, we review the district court‘s findings of fact with respect to sentencing under the clear error standard. United States v. Betancourt, 422 F.3d 240, 244-45 (5th Cir.2005).

Section 2D1.1(b)(12) provides a two-level enhancement if the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution. Monjaras-Pichardo resided in the barn located on a ranch owned by his coconspirator and assisted in the distribution of heroin and the collection of drug proceeds. The heroin was retrieved from the barn by coconspirators and taken to stash apartments. In his signed factual resume, Monjaras-Pichardo admitted that he received heroin from Mexico at his residence. Additionally, 35.42 grams of heroin were discovered in the barn. Regarding the Chariot Drive apartment, Monjaras-Pichardo rented the apartment, which was used as a stash house. In light of these facts, it is plausi-

Notes

1
Turcios-Rivera objected to the substantive reasonableness of his sentence in the district court. However, he did not raise the alleged improper consideration of his arrest record, which we have treated as a procedural error, see Harris, 702 F.3d at 229, in the district court. Under our precedent, then, plain error review would be the appropriate standard. United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007). Because we conclude that Turcios-Rivera has not shown reversible error even if the error were preserved, we need not address the standard of review further.
*
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. 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. 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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