### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-60484 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ELIE FRANKLIN, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:11-CR-156-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Elie Franklin appeals the 84-month ab ove - gui delines sentence imposed by the district court following his guilty plea conviction for failure to register as a
sex offender. He asserts that the sentence was unreasonably long given that the advisory guidelines range was 33 to 41 m o nths of imprisonment and that the district court erred in basing the sentence in part on information in the Present e n c e R e p o r t (PSR) ¶ 95 that he had sexual relations with a woman without informing her that he was HIV positive. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary9, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

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Neither the district court’s oral reasons n o r t h e Statement of Reasons clearly indicates that the district court based Franklin’s sentence in part on the information in PSR ¶ 95. However, even if the district court based the sentence in part of this c o n d u c t , Franklin has not shown that the sentence was substantively unreasonable for that reason. Under 18 U.S.C. § 3661, there is no l i m i t on the information concerning a defendant’s background, character, and conduct that a sentencing court may receive and co n s i der for sentencing
purposes. United States v. Rodriguez , 558 F.3d 408, 412 (5th Cir. 2009). There

was reliable evidence in the record on which the district court could rely to find by a preponderan c e of the evidence that Franklin had sexual relations with a
woman without informing her that he was HIV positive, including the woman’s testimony at Fr anklin’s detention hearing and her written statement introduced at Franklin’s sentencing hearing. See United States v. Whitfield , 590 F.3d 325, 367 (5th Cir. 2 0 0 9 )

. Although Franklin was not arrested or convicted for this conduct, this case is an a l o g o u s to United States v. Lopez-Velasquez , 526 F.3d 804, 807 (5th Cir.2008), in which this court affirmed a sentence based in part on the defendant’s prior arr e s ts where the arrests were deemed reliable because the underlying charges were corroborated by more than half a dozen deportations. This case is distinguishable from United States v. Johnson , 648 F.3d 273, 277-78 (5th Cir. 2011)(holding that it is error for a sentencing court to co n s i d e r a defendant’s bare arre s t record without more in imposing a sentence), because there was reliable evidence in the record to support the information in the PSR concerning Franklin’s prior conduct. Therefore, to the extent t h a t t he district court based Franklin’s sentence in part on this prior conduct, the district court did not err in considering this information because it was based on reliable evide n c e . See, e.g., Lopez-Velasquez , 526 F.3d at 807; Whitfield , 590 F.3d 325, 367. The 84-month sentence was no t otherwise substantively unreasonable. The district court expressly r e li e d o n th e a dvi s o ry guidelines range, the statutory
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penalties, and the 18 U.S.C. § 3553(a) factors, focusing primarily on Franklin’s

e xt e n s ive criminal history and numerous parole violations, th e s e rio u s n e s s of th e instant offense, the need to provide just punishment, and the need to protect the public from further crimes by him. Altho u gh the upward variance was significant , t h i s court has affirmed more significant deviations. See United States v. Brantley , 537 F.3d 347, 348-50 (5th Cir. 2008); U n i t ed States v. Williams , 517 F. 3 d 8 0 1 , 812 (5th Cir. 2008); United States v. Smith , 417 F.3d 483, 492-93 (5th Cir. 2005). AFFIRMED.

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