United States v. Miguel Alba-Morales ( 2019 )

Case: 18-10413 Document: 00514880792 Page: 1 Date Filed: 03/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10413 FILED
Summary Calendar March 20, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL ALBA-MORALES, also known as Miguel Alba,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-116-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Miguel Alba-Morales appeals his 60-month, above-guidelines sentence
for illegal reentry following deportation, contending that it is both procedurally
and substantively unreasonable. Specifically, he argues that his sentence,
which is the result of an upward variance based, in part, on prior
unadjudicated arrests for drug possession and theft, is procedurally
unreasonable because the presentence report (PSR) lacked an adequate
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-10413 Document: 00514880792 Page: 2 Date Filed: 03/20/2019
No. 18-10413
evidentiary basis for finding that he had committed the uncharged drug
possession and theft offenses. We review the district court’s factual findings
for clear error. See United States v. Carey, 589 F.3d 187, 196 (5th Cir. 2009);
see also Gall v. United States, 552 U.S. 38, 51 (2007).
Because Alba-Morales does not challenge the PSR’s reliability and
offered no evidence at sentencing to rebut the PSR’s facts, he shows no error
in the district court’s adoption of and reliance on the PSR to support its factual
finding. See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). Alba-
Morales asserts that there was not enough information in the PSR to support
an inference that his prior conduct—possessing a baggie of “white powdery
substance” and knowingly receiving stolen property—amounted to drug
possession or theft as a matter of law. This argument misses the mark because
the district court made no such findings; it found only that Alba-Morales
“engaged in the conduct” described in the relevant paragraphs of the PSR. See
United States v. Fuentes, 775 F.3d 213, 220-21 (5th Cir. 2014). Alba-Morales
fails to show that this finding was clear error. See United States v. Hebert, 813
F.3d 551, 560 (5th Cir. 2015). Thus, he fails to show procedural error. See
Gall, 552 U.S. at 51; Carey, 589 at 196.
Finally, Alba-Morales fails to show that his sentence was substantively
unreasonable. See Gall, 552 U.S. at 51. We give “due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance,” and we conclude that there was no abuse of the court’s discretion.
Id.
AFFIRMED.
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