United States v. Tony Tshiansi ( 2018 )


Menu:
  •      Case: 17-10666      Document: 00514769319         Page: 1    Date Filed: 12/20/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 17-10666                             FILED
    Summary Calendar                   December 20, 2018
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    v.
    TONY KALUMBA TSHIANSI.
    Defendant–Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:17-CR-3-1
    Before SMITH, WIENER, and WILLETT, Circuit Judges.
    PER CURIAM: *
    In 2017, Tony Kalumba Tshiansi pleaded guilty to bank robbery and
    aiding and abetting, in violation of 
    18 U.S.C. §§ 2
     and 2113(a). The district
    court determined that a sentence within Tshiansi’s advisory sentencing range
    of 37 to 46 months of imprisonment was inadequate to account for his two
    additional bank robberies, an attempted bank robbery, and other criminal
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10666     Document: 00514769319      Page: 2   Date Filed: 12/20/2018
    No. 17-10666
    conduct. Varying upward, it imposed an above-guidelines sentence of 180
    months of imprisonment and 3 years of supervised release.
    On appeal, Tshiansi argues that he was denied an impartial tribunal
    because the district judge requested FBI investigative material that was used
    in preparing the presentence report (PSR), filed it into the record, and relied
    on it for sentencing purposes. Because Tshiansi did not object in the district
    court to the judge’s alleged lack of impartiality despite having the opportunity
    to do so, we review this challenge for plain error. See Puckett v. United States,
    
    556 U.S. 129
    , 135-36 (2009); United States v. Williams, 
    343 F.3d 423
    , 439 (5th
    Cir. 2003). Tshiansi has cited no authority showing that the district court’s
    challenged actions constituted clear or obvious error in terms of partiality.
    Accordingly, he has not shown reversible error.
    Tshiansi also contends that the district court’s consideration of the FBI
    investigative material at sentencing was not authorized by Federal Rule of
    Criminal Procedure 32. Because he did not object on Rule 32 grounds in the
    district court, we also review this issue for plain error. See Puckett, 
    556 U.S. at 135
    ; United States v. Esparza-Gonzalez, 
    268 F.3d 272
    , 274 (5th Cir. 2001).
    By failing to cite any authority showing that the district court’s use of the
    investigative material constituted clear or obvious error under Rule 32,
    Tshiansi has not shown reversible error.
    Next, Tshiansi challenges his sentence as both procedurally and
    substantively unreasonable. We review his sentence for reasonableness in
    light of the sentencing factors of 
    18 U.S.C. § 3553
    (a) using an abuse-of-
    discretion standard. Gall v. United States, 
    552 U.S. 38
    , 49-51 (2007). Because
    Tshiansi preserved his challenges, we review the district court’s interpretation
    and application of the Guidelines de novo and its findings of fact for clear error.
    See United States v. Cisneros-Gutierrez, 
    517 F.3d 751
    , 764 (5th Cir. 2008).
    2
    Case: 17-10666    Document: 00514769319         Page: 3    Date Filed: 12/20/2018
    No. 17-10666
    Tshiansi asserts that the district court procedurally erred by basing an
    upward variance on his PSR and FBI summaries of his co-defendants’
    statements because those documents lacked sufficient indicia of reliability.
    Tshiansi’s argument lacks merit. Investigative records from law enforcement
    agencies are generally considered reliable. See United States v. Manthei, 
    913 F.2d 1130
    , 1137-38 (5th Cir. 1990). Statements by co-defendants also have
    sufficient indicia of reliability for use at sentencing when, as in this case, they
    are    largely    corroborated   by    other    information     or    law    enforcement
    investigations. See United States v. Rico, 
    864 F.3d 381
    , 386 (5th Cir.), cert.
    denied, 
    138 S. Ct. 487
     (2017); United States v. Zuniga, 
    720 F.3d 587
    , 591 (5th
    Cir. 2013); United States v. Rogers, 
    1 F.3d 341
    , 343-44 (5th Cir. 1993).
    Tshiansi’s PSR was based on the criminal complaint, indictment, factual
    resume, FBI investigative reports, and FBI summaries of interviews with
    Tshiansi’s co-defendants. Information in the PSR is generally presumed to be
    reliable. United States v. Soza, 
    874 F.3d 884
    , 897 (5th Cir. 2017). Although
    Tshiansi has pointed to isolated errors in the PSR, those errors were corrected
    at sentencing and do not establish that the document was unreliable.
    Finally,    Tshiansi   argues     that   his   sentence       was    substantively
    unreasonable because the district court’s § 3553(a) analysis did not explain
    how his unadjudicated criminal conduct supported the upward variance. He
    contends that his sentence was excessive because the upward variance
    exceeded the range calculated by defense counsel to encompass all of his
    unadjudicated conduct. A sentence is not unreasonable merely because a
    different sentence would also have been appropriate. See Gall, 
    552 U.S. at 51
    .
    In this case, the district court provided a thorough discussion as to how each
    of the relevant § 3553(a) factors supported an upward variance. Although the
    variance was significant, it is analogous to other variances we have affirmed.
    3
    Case: 17-10666    Document: 00514769319     Page: 4   Date Filed: 12/20/2018
    No. 17-10666
    See, e.g., United States v. Hebert, 
    813 F.3d 551
    , 561-63 (5th Cir. 2015); United
    States v. Mejia-Huerta, 
    480 F.3d 713
    , 723 (5th Cir. 2007).
    The judgment of the district court is AFFIRMED.
    4