United States v. Tony Tshiansi

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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).
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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.
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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.
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