United States v. Taylor ( 2022 )

Case: 21-10557 Document: 00516203328 Page: 1 Date Filed: 02/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 15, 2022
No. 21-10557
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jason Carl Taylor,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-206-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Jason Carl Taylor appeals the 96-month, within-guidelines sentence
imposed upon his guilty plea to possession of a firearm as a felon. On appeal,
he challenges the district court’s application of a sentence enhancement
under U.S.S.G. § 2K2.1(b)(6)(B), which adds four levels if a defendant
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10557 Document: 00516203328 Page: 2 Date Filed: 02/15/2022
No. 21-10557
“used or possessed any firearm or ammunition in connection with another
felony offense.” The presentence report (PSR) provided that the
enhancement was warranted because Taylor threatened and pointed a
shotgun at another individual. Taylor argues that the PSR lacked sufficient
indicia of reliability and that the district court erred by relying on the PSR at
sentencing.
We review the district court’s factual findings for clear error. United
States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). A PSR generally bears
sufficient indicia of reliability to be considered by the sentencing judge in
making factual determinations. United States v. Fuentes, 775 F.3d 213, 220
(5th Cir. 2014). A “district court may properly find sufficient reliability on a
[PSR] which is based on the results of a police investigation,” including those
that rely on victim interviews. United States v. Vela, 927 F.2d 197, 201 (5th
Cir. 1991); see Fuentes, 775 F.3d at 220. However, “[b]ald, conclusionary
statements do not acquire the patina of reliability by mere inclusion in the
PSR.” United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993). If the
PSR bears sufficient indicia of reliability, then the defendant has the burden
of showing that the PSR is inaccurate. United States v. Zuniga, 720 F.3d 587,
591 (5th Cir. 2013).
Here, the information in the PSR was based on the victim’s initial call
to police and his subsequent interview at the scene. The victim’s statements
were corroborated in at least three ways: Taylor and his car matched the
victim’s description, the police found a shotgun in Taylor’s car, and Taylor
admitted that he and the victim were in a verbal altercation. While additional
corroboration from third-party witnesses would certainly strengthen the
indicia of reliability, we have “never held that corroboration is necessary in
order for a factual account contained in a PSR to bear sufficient indicia of
reliability to support its consideration at sentencing.” United States v.
Parkerson, 984 F.3d 1124, 1129 (5th Cir. 2021), cert. denied, 2022 WL 892802
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No. 21-10557
(U.S. Jan. 10, 2022) (No. 20-8345). Further, although no aggravated assault
charges were filed, Texas “prosecutors have broad discretion in deciding
which cases to prosecute.” Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim.
App. 2004) (en banc). Because the PSR contained sufficient indicia of
reliability and Taylor failed to present any rebuttal evidence, the district court
was entitled to rely on the PSR at sentencing. See Zuniga, 720 F.3d at 591.
Accordingly, the district court did not clearly err by applying the
enhancement, see Parkerson, 984 F.3d at 1130, and the judgment of the district
court is AFFIRMED.
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