United States v. Robert Sikes ( 2017 )

Case: 16-11620 Document: 00514128391 Page: 1 Date Filed: 08/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11620 FILED
Summary Calendar August 23, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT SIKES, also known as “German”,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-118-7
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Robert Sikes appeals his 210-month sentence following his guilty plea
conviction for conspiracy to possess with intent to distribute
methamphetamine. Sikes argues that the district court clearly erred in its
drug quantity calculations, because it relied on what he characterizes as
inaccurate and unreliable statements of his coconspirators. He further argues
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-11620
that the district court erred in enhancing his sentence for use of violence and
importation of the drugs.
When a defendant preserves error as Sikes did, we review the sentencing
court’s interpretation of the Sentencing Guidelines de novo and its factual
findings for clear error. See United States v. Gomez-Alvarez, 781 F.3d 787, 791
(5th Cir. 2015). “Factual findings regarding sentencing factors are entitled to
considerable deference and will be reversed only if they are clearly erroneous.”
United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (internal
quotation marks and citations omitted).
Information in a presentence report (PSR) “is presumed reliable and may
be adopted by the district court without further inquiry if the defendant fails
to demonstrate by competent rebuttal evidence that the information is
materially untrue, inaccurate or unreliable.” Gomez-Alvarez, 781 F.3d at 796
(internal quotation marks and citation omitted). Even a PSR based on hearsay
statements of codefendants may be reliable for sentencing purposes. See
United States v. Zuniga, 720 F.3d 587, 591-92 (5th Cir. 2013). A defendant’s
conclusory assertion or objection “merely in the form of unsworn assertions” is
insufficient to rebut the findings contained in a PSR. United States v.
Lghodaro, 967 F.2d 1028, 1030 (5th 1992).
With respect to the PSR’s drug quantity calculations, Sikes failed to offer
sufficient evidence to rebut the statements of his coconspirators, which
attributed to him more than 900 grams of methamphetamine. See Zuniga, 720
F.3d at 591-92. As such, he failed to demonstrate that the PSR’s drug quantity
calculation was based on information “materially untrue, inaccurate or
unreliable.” See Gomez-Alvarez, 781 F.3d at 796. Similarly, Sikes failed to
rebut the PSR’s findings that he used violence when he shot at a coconspirator
over a drug debt and that he imported methamphetamine from Mexico. See
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No. 16-11620
U.S.S.G. §§ 2D1.1(b)(2), (b)(5). Thus, the district court did not clearly err in
adopting the PSR’s findings and enhancing Sikes’s sentence accordingly. See
Gomez-Alvarez, 781 F.3d at 796; Betancourt, 422 F.3d at 246.
Sikes also contends that his sentence is procedurally unreasonable
because the district court failed to address his nonfrivolous arguments for a
downward variance. Because Sikes did not object on this ground in the district
court, review is for plain error. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). Sikes must show an error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id. The error affects substantial rights
if it “affected the sentencing outcome.” Mondragon-Santiago, 564 F.3d at 365.
A review of the record does not support Sikes’s argument that the district
court failed to consider his arguments for a lower sentence. In fact, “the full
sentencing record reveals the district court’s reasons for the chosen sentence
and allows for effective review by this court.” United States v. Bonilla, 524
F.3d 647, 658 (5th Cir. 2008). Even if the district court’s reasons were
inadequate and constituted plain error, Sikes has not shown that a more
extensive explanation would have changed his 210-month sentence, which is
presumed reasonable. See Mondragon-Santiago, 564 F.3d at 365; United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Accordingly, the judgment
of the district court is AFFIRMED.
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