* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 26, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20532

UNITED STATES

Plaintiff-Appellee

v.

FRANCIS A. FUNES

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:05-CR-460-ALL

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Francis Funes appeals his sentence for using a passport that was secured

by means of a false statement, in violation of 18 U.S.C. § 1542. For the following

reasons, we affirm.

I. FACTS AND PROCEEDINGS

A. The charged conduct and plea

On March 1, 2005, Francis Funes was charged in a two-count indictment

with (1) using a passport that had been secured by his false statements, in
No. 06-20532

2

violation of 18 U.S.C. § 1542; and (2) using a passport issued for the use of

another, in violation of 18 U.S.C. § 1544. Funes pleaded guilty to the first count,

without a plea agreement, on March 3, 2006. The government moved to dismiss

the second count, and the district court granted the motion. 

At his rearraignment, Funes admitted to the following factual basis.

Funes, a citizen of El Salvador, was stopped by Houston police officers on a

Texas warrant for sexual assault of a child. Funes presented a Honduran

driver’s license and a Honduran passport, both of which indicated that he was

Rudi Renan Amador Martinez, to the police officers. Funes was also in

possession of a Honduran General Consulate card, a Bank of America VISA card,

a Sam’s Club card, and a Tool Club card, all of which were issued in the name

of Rudi Renan Amador Martinez. Honduran immigration authorities later

reported that the passport was issued to Funes by the Honduran Consulate in

Houston on the basis of Funes’s false claim that he was a Honduran citizen

named Rudi Renan Amador Martinez. Interviews with Martinez’s family

members revealed that the photo on the passport Funes used was not a photo of

their relative. Funes obtained the passport by pretending to be Martinez. The

court accepted Funes’s guilty plea and ordered that a pre-sentence report

(“PSR”) be prepared. 

B. The pre-sentence hearing

On May 26, 2006, which was to be the date of Funes’s sentencing hearing,

the district court announced thatitintended to make an upward departure from

the guidelines and offered the parties additional time to prepare. Funes asked

for additional time and asked the district court “if there [were] specific issues

that [he] should be prepared to respond to.” The district court refused to

specifically detail how it intended to depart but stated that it would look at

Funes’s history and characteristics; his criminal history, as indicated by the

PSR, particularly “uncharged offenses”; the circumstances surrounding his
No. 06-20532

3

commission ofthe offense, in particular Funes’s immigration status; and the fact

that Funes “had other materials on him at the time . . . all the markings of

identity theft for other purposes well beyond just the offense of the conviction.”

The district court specifically indicated its concern that “the advisory guidelines

are inadequate to reflect the purposes set forth in [18 U.S.C. §] 3553(a)(2).” 

C. The PSR

The probation office included a number of facts about Funes that did not

affectits guideline calculation in the PSR. Though the PSR assigned Funes zero

criminal history points, putting him in category I, it noted two incidents that did

not lead to a conviction. In 2002, a woman contacted the Houston Police

Department (“HPD”) to report that her 14-year-old daughter had been having

consensual sex with Funes, who was then 22. The victim reported that she ran

away from home and stayed at Funes’s apartment for eight days. The victim

admitted that she had intercourse withFunes on five occasions during thattime,

and that he told her not to tell anyone. Upon an investigation that revealed

“sufficient indicia of reliability,” Funes was charged with the equivalent of

statutory rape, a strict liability crime. The case was ultimately dismissed in

2006, but only at the request of the victim, who had turned eighteen. 

Further, when another former girlfriend of Funes’s was arrested for

shoplifting, she told officers of the HPD that Funes “was deeply involved in an

elaborate theft ring and had recruited her.” Funes was never charged with any

offense related to this report. 

At the time Funes was arrested, “HPD officers had uncorroborated

information about Funes having ties to the Mara Salvatrucha (MS-13) gang and

he was wanted for questioning in connection with an aggravated robbery.” No

further information about Funes’s alleged membership in MS-13 appears in the

PSR. 
No. 06-20532

** Funes acknowledged his responsibility in a signed statement to the probation office,

which admitted that he “went to the Honduran Consulate with false license.” 

4

Funes received temporary protected status (“TPS”) when he arrived in the

United States on January 14, 2002, and he received two extensions of this

status, which expired on March 9, 2005. A detainer has been filed against Funes

by Immigration and Customs Enforcement officials. 

Funes’s financial condition, as described in thePSR, was as follows. Funes

reported that he had been employed as an apartment repairman by a

management company, IMT, since 2000. He allegedly earned $450 per week for

this work, though the probation office was unable to verify the existence of the

company. Funes also claimed sporadic work as a laborer and that he

occasionally bought and sold cars at auction. Despite his limited income, Funes

reported that he had a checking account with a balance of $7,000 and a savings

account with a balance of $3,000. He also stated that he owned two vehicles,

debt-free, with a combined value of $22,000. A credit report revealed no open or

active accounts in his name. 

After subtracting two levels for acceptance of responsibility, with a total

offense level of 6 and a criminal history category of I, the guideline range for

imprisonment would be 0 to 6 months.** Prior to the sentencing hearing, neither

party indicated that there were any grounds for departure. 

D. The upward departure

The government moved for an upward departure from the sentencing

guidelines. The government urged the district court to upwardly depart because

(1) a criminal history category of I did not adequately reflect the seriousness of

Funes’s criminal activities and the likelihood that he would commit further

crimes; and (2) the history and characteristics of Funes, as well as the

circumstances of the offense, indicated that a longer sentence was necessary to

prevent further crimes. Funes argued in response that no reliable information
No. 06-20532

5

indicated that his criminal history was substantially underrepresented and that

any alleged conduct was not serious enough to justify an upward departure. 

At sentencing, the district court announced that the aggravating

circumstances surrounding Funes’s offense removed it from the heartland of

similar offenses addressed by U.S.S.G. § 2L2.2, meriting an upward departure.

Specifically, the district court found “from a preponderance of the evidence . . .

that [Funes] committed additional crimes for which he was not charged and did

not proceed to trial.” It also found that a criminal history category of I

“significantly underrepresents the seriousness of the defendant’s criminal

history and the likelihood that he will commit future crimes.” The district court

noted that Funes had an outstanding warrant for sexual assault of a child atthe

time he was arrested and that he attempted to conceal his identity from police

when he was stopped. These factors justified a four-level upward departure

pursuant to U.S.S.G. § 5K2.0. The court then added eight levels of departure

because itfound thatthe additional forms of false identificationFunes possessed

at the time he was arrested “constitute[d] uncharged criminal conduct, namely,

identity fraud, and, it appears, bank fraud.” 

The district court found that the charge of sexual assault of a child, which

was ultimately dismissed, as well as Funes’s use of multiple aliases, the

allegation that he was involved in a “theft ring,” his unverified employment

history, and the substantial assets he owned despite a reportedly meager

income, combined with his illegal status in the United States and the risk that

he might return to the United States following deportation, indicated that his

criminal history category should be III instead of I. The criminal history

category of III, combined with his enhanced offense level of 18, yielded a

guideline range of 33 to 41 months. The district court sentenced Funes to 36

months of imprisonment and stated that even if its application of the guidelines
No. 06-20532

6

were in error, it would have found that a variance from the guidelines was

warranted to accomplish the purposes of 18 U.S.C. § 3553(a). 

II. STANDARD OF REVIEW

All post-Booker sentences are ultimately reviewed for reasonableness.

United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). Following Booker,

three different types of sentences are possible under the sentencing guidelines:

(1) a sentence within a properly calculated guideline range; (2) a sentence that

includes a departure allowed under the guidelines; and (3) a non-guidelines

sentence that is either higher or lower than the relevant guideline sentence. Id.

at 706–07. The last sentencing option is also known as a variance from the

guidelines. United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).

Before imposing a variance, “the sentencing court must calculate the correct

Guidelines range, consider it as advisory, and use it as a frame of reference.” Id.

at 721. 

“Both a district court’s post- Booker sentencing discretion and the

reasonableness inquiry on appeal must be guided by the sentencing

considerations set forth in 18 U.S.C. § 3553(a).” Smith, 440 F.3d at 706. 

[T]he district court must more thoroughly articulate its reasons

when it imposes a non-Guideline sentence than when it imposes a

sentence under authority of the Sentencing Guidelines. These

reasons should be fact-specific and consistent with the sentencing

factors enumerated in section 3553(a). The farther a sentence varies

from the applicable Guideline sentence, the more compelling the

justification based on factors in section 3553(a) must be. The court,

however, need not engage in robotic incantations that each statutory

factor has been considered. . . . The purpose of the district court’s

statement of reasons is to enable the reviewing court to determine

whether, as a matter of substance, the sentencing factors in section

3553(a) support the sentence. . . . A non-Guideline sentence

unreasonably fails to reflect the statutory sentencing factors where

it (1) does not account for a factor that should have received
No. 06-20532

*** We note, however, that although Funes received adequate notice, he was, in fact, not

entitled to any notice regarding the possible grounds for a variance from the sentencing

guidelines. See Mejia-Huerta, 480 F.3d at 723–24. (“If we were to conclude that the advance

notice requirement of Rule 32(h) applies to non-Guidelines sentences, we would re-elevate the

7

significant weight, (2) gives significant weight to an irrelevant or

improper factor, or (3) represents a clear error of judgment in

balancing the sentencing factors.

Id. at 707–08 (internal citation and quotation omitted). “Where, as here, a

district court imposes a post- Booker, non-Guideline sentence . . . we conduct our

reasonableness review through an abuse-of-discretion lens, paying particular

attention to the specific reasons given for deviating from the Guidelines.” United

States v. Armendariz, 451 F.3d 352, 358 (5th Cir. 2006).

III. ANALYSIS

A. Notice of grounds for sentencing

Funes contends that the district court erred by failing to give him

sufficient notice of the grounds for its intention to depart upward from the

guidelines. See FED. R. CRIM. P. 32(h) (“Before the court may depart from the

applicable sentencing range on a ground not [previously] identified for departure

. . . the court must give the parties reasonable notice that it is contemplating

such a departure. The notice must specify any ground on which the court is

contemplating a departure.”). 

The record shows that Funes did, in fact, receive notice of the district

court’s intent to impose a variance from the sentencing guidelines. After

calculating the correct Guidelines range, the district court indicated at the presentencing hearing its beliefthatthe recommended Guidelines sentencing range

was inadequate, and that it would impose a variance. The government moved

for an upward departure and the defendant timely responded to the motion.

Therefore, Funes’ sentence may not be vacated for lack of notice regarding the

upward departure.***
No. 06-20532

Guidelines to a position it no longer enjoys. Thus, we conclude that sentencing courts are not

required to give pre-sentencing notice of their sua sponte intention to impose a non-Guidelines

sentence, regardless ofthe pre-Bookerpronouncements of[UnitedStates v. Burns, 501 U.S. 129

(1991)] and Rule 32(h).”). 

8

B. Improper consideration of dismissed charge

Funes asserts that the district court erred by considering his dismissed

charge for sexual assault of a minor in its sentencing determination. The

guidelines explicitly prohibit consideration of a prior arrest followed by

dismissed charges to support an upward departure, without further evidence

that a crime was in fact committed. See United States v. Jones (Jones I), 444

F.3d 430, 434 (5th Cir. 2006). This is because “[a]rrests, standing alone, do not

constitute reliable information” of prior criminal conduct. Id. However, a district

court may make a finding that the defendant actually committed the offense for

which he was arrested; this is a proper consideration if the finding is supported

by the evidence before the district court. Jones I, 444 F.3d at 434; United States

v. Jones (Jones II), __ F. 3d __, 2007 WL 1723306, at *2 (5th Cir. June 15, 2007).

Here, the district court made these findings. At no time did Funes assent to the

crimes charged. At sentencing, however, the district court noted that, although

the charges did not result in a conviction, “there have been no denials of the

factual accuracy of the information set forth in the PSR, rather the defendant is

only challenging it for a lack of corroboration.” The district court went on to

directly state that Funes “committed the offense that led to the charges against

him for sexual assault of a minor;” the district court thus found that Funes

committed the crime based on the reliable indicia surrounding the charge, the

indictment, and the ultimate dismissal. “[T]he district court could have

considered those facts in determining the likelihood that [Funes] would commit

crimes in the future.” Jones I, 444 F.3d at 434. The district court did not err by

considering the facts that it found with regard to this offense.
No. 06-20532

9

C. Failure to consider disparity

Funes asserts that the district court erred by failing to consider the

sentencing disparity resulting from its choice to depart from the guidelines

range. If “[t]he district court relie[s] on significant factors not accounted for by

[the defendant’s] Guideline range[,] . . . the imposed sentence does not produce

an unwarranted disparity.” Smith, 440 F.3d at 709. Here, the district court

relied on a number of factors not taken into account by Funes’s guideline range,

including his criminal history, elements of the offense indicating a likelihood of

future criminal conduct, and the risk that he would illegally reenter following

deportation. The district court did not err by failing to explicitly state that it

had taken sentencing disparities into account.

D. Undue weight to false documents

Funes contends that the district court erred by considering his possession

of multiple documents in the name of Martinez. The district court found at

sentencing that Funes’s possession of the documents, including a bank credit

card, “constitute[d] uncharged criminal conduct, namely identity fraud and, it

appears, bank fraud.” On this basis, the district court upwardly departed by

eight levels. 

Funes points out that the facts found by the district court would not be

sufficientto sustain a conviction for the federal offenses of identity theft or credit

card fraud. See 18 U.S.C. §§ 1028, 1029. The government does not contest this

argument, butit contends thatFunes’s possession ofthe additional identification

was consistent with the other evidence of his multiple aliases, unexplained

assets, and an allegation by an ex-girlfriend of his participation in a theft ring,

and generally indicated an ongoing pattern of criminal activity. Consideration

of this material was not improper, since it related to the “nature and

circumstances of the offense” as well as the need for the sentence “to afford

adequate deterrence” and “to protectthe public from further crimes,” all of which
No. 06-20532

10

were cited by the district court in its explanation of why a variance would be

warranted. See 18 U.S.C. § 3553(a).

IV. CONCLUSION

Because the district court’s sentence, imposed as a variance from the

sentencing guidelines, was reasonable in light of its findings and the factors

listed in 18 U.S.C. § 3553(a), we AFFIRM the judgment of the district court.