IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 above-guidelines 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 months of imprisonment and that the

district court erred in basing the sentence in part on information in the

Presentence Report (PSR) ¶ 95 that he had sexual relations with a woman

without informing her that he was HIV positive.

United States Court of Appeals

Fifth Circuit

F I L E D

January 9, 2013

Lyle W. Cayce

Clerk

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. 12-60484

Neither the district court’s oral reasons nor the 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 conduct, Franklin has not shown that the sentence was

substantively unreasonable for that reason. Under 18 U.S.C. § 3661, there is no

limit on the information concerning a defendant’s background, character, and

conduct that a sentencing court may receive and consider 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 preponderance 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 Franklin’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. 2009). Although Franklin was not arrested or convicted for this

conduct, this case is analogous 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 arrests 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 consider a

defendant’s bare arrest 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 that the 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

evidence. See, e.g., Lopez-Velasquez, 526 F.3d at 807; Whitfield, 590 F.3d 325,

367.

The 84-month sentence was not otherwise substantively unreasonable. 

The district court expressly relied on the advisory guidelines range, the statutory

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No. 12-60484

penalties, and the 18 U.S.C. § 3553(a) factors, focusing primarily on Franklin’s

extensive criminal history and numerous parole violations,the seriousness ofthe

instant offense, the need to provide just punishment, and the need to protect the

public from further crimes by him. Although the upward variance was

significant, this court has affirmed more significant deviations. See United

States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008); United States v.

Williams, 517 F.3d 801, 812 (5th Cir. 2008); United States v. Smith, 417 F.3d

483, 492-93 (5th Cir. 2005).

AFFIRMED. 

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