United States v. Abran Garcia-Peguero

Case: 15-41119 Document: 00513588742 Page: 1 Date Filed: 07/12/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-41119
Fifth Circuit
FILED
Summary Calendar July 12, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ABRAN GARCIA-PEGUERO, true name Abraham Garcia-Peguero,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-809-1
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Abran Garcia-Peguero pleaded guilty, without the benefit of a plea
agreement, to illegal reentry. The presentence report (PSR) recommended an
eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) based on a finding
that in August 2014, Garcia-Peguero was deported after he had been convicted
in 2012 of possessing ammunition as an illegal alien. The PSR explained that
a deportation warrant was issued for Garcia-Peguero in 2014 and that the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41119
warrant- showed that he was deported, though it did not reveal the date he left
the country. The warrant was not entered into the record in the district court.
Garcia-Peguero objected to this enhancement, but the district court overruled
the objection. He received a 30-month prison sentence to be followed by three
years of supervised release. We granted the Government’s motion to
supplement the record on appeal with, among other things, some of Garcia-
Peguero’s immigration records, including the 2014 deportation warrant.
Pressing his challenge to the sentencing enhancement, Garcia-Peguero
argues that the finding that he was deported after his 2012 conviction lacked
an adequate evidentiary basis. He urges that we should not consider
documents that the district court did not evaluate and asserts that because the
immigration records do not reflect the precise date of his deportation, they were
unreliable and thus could not support a finding that he was deported after the
2012 conviction.
Under § 2L1.2(b)(1)(C), a defendant is subject to an eight-level
enhancement if he “previously was deported, or unlawfully remained in the
United States,” after a conviction for an aggravated felony. The commentary
to the Guideline instructs that a defendant “shall be considered to be deported
after the conviction if the defendant has been removed or has departed the
United States while an order of exclusion, deportation, or removal was
outstanding.” § 2L1.2, comment. (n.1(A)(i)). Because we granted the
Government’s motion to supplement the record on appeal with some of Garcia-
Peguero’s immigration records, we may review them to determine whether the
enhancement was proper even if the district court did not examine them. See
United States v. Vargas-Soto, 700 F.3d 180, 183 (5th Cir. 2012).
The probation officer explained in the PSR, in the addendum to the PSR,
and at sentencing that, according to immigration records, Garcia-Peguero was
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No. 15-41119
ordered removed in August 2014 and ultimately was deported. A review of the
deportation warrant reveals that it was signed by an immigration officer and
issued on August 4, 2014, and that, at some point after the warrant was issued,
Garcia-Peguero was deported. Garcia-Peguero signed the warrant, and his
photograph and fingerprint were taken. A special agent attested that he
witnessed Garcia-Peguero’s departure, and a second agent verified the
departure. The warrant confirms that the information provided by the
probation officer had “an adequate evidentiary basis with sufficient indicia of
reliability” such that the district court was permitted to rely on it for purposes
of sentencing. United States v. Fuentes, 775 F.3d 213, 220 (5th Cir. 2014); see
United States v. Manthei, 913 F.2d 1130, 1138 (5th Cir. 1990) (determining
that information in the PSR derived from Drug Enforcement Administration
“investigative records” had sufficient indicia of reliability); United States v.
Cuellar-Flores, 891 F.2d 92 (5th Cir. 1989) (explaining that the testimony of a
probation officer who had received information from investigatory case agents
and law enforcement officers had sufficient indicia of reliability). Accordingly,
the district court’s decision to overrule Garcia-Peguero’s objection and apply
the enhancement and its implicit determination that Garcia-Peguero was
deported after his 2012 conviction were not clearly erroneous. See United
States v. Simpson, 741 F.3d 539, 556 (5th Cir. 2014); United States v. Odom,
694 F.3d 544, 547-48 (5th Cir. 2012).
AFFIRMED.
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