* 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.

REVISED AUGUST 13, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11169

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAYMOND RODRIGUEZ, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CR-113-1

Before KING, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Raymond Rodriguez, Jr., was convicted of bank robbery and was sentenced

to serve 120 months in prison and a three-year term of supervised release. In

this appeal, he argues that his sentence, which was the result of an upward

variance, is substantively unreasonable. 

This court reviews sentencing decisions for reasonableness and applies the

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007).

United States Court of Appeals

Fifth Circuit

F I L E D

July 26, 2012

Lyle W. Cayce

Clerk
No. 10-11169

2

Our review of the record and Rodriguez’s arguments reveals no abuse of

discretion in connection with his sentence. 

Rodriguez argues that his non-Guidelines sentence is unreasonable

because it is based on “stale” convictions and facts taken from police reports.

Rodriguez’s claims are unavailing. This court has held that “[a] defendant’s

criminal history is one of the factors that a court may consider in imposing a

non-Guideline sentence.” United States v. Smith, 440 F.3d 704, 709 (5th Cir.

2006). 

Rodriguez also asserts that the district court erred when it increased his

sentence based on “misconduct established only by police reports” because “police

reports are regarded as a quintessentially unreliable means by which to

establish the defendant’s conduct.” In making factual findings for sentencing

purposes, the district court may consider any evidence which bears sufficient

indicia of reliability to support its probable accuracy. United States v. Nava,

624 F. 3d 226, 230-31 (5th Cir. 2010). Facts contained in a PSR are considered

reliable and may be adopted without further inquiry if the defendant fails to

present competent rebuttal evidence. See United States v. Puig–Infante, 19F.3d

929, 943 (5th Cir.1994). Additionally, this court has considered police reports

reliable in the sentencing context. United States v. Jimenez, 275 F. App’x 433,

438 (5th Cir. 2008); United States v. Posada–Rios, 158 F.3d 832, 881 (5th Cir.

1998). If the defendant takes issue with the evidence, he “bears the burden of

demonstrating that the information cannot be relied upon because it is

materially untrue, inaccurate or unreliable.” Nava, 624 F.3d at 231 (internal

quotation marks and citation omitted). 

The district court considered the statements presented at sentencing and

the PSR and was free to conclude, as it did, that the guidelines range gave

insufficient weight to some of § 3553(a)’s sentencing factors. The record reflects

that the district court’s decision to impose a non-Guidelines sentence was based

on permissible factors that advanced the objectives set forth in § 3553(a) and
No. 10-11169

3

were justified by the facts of the case. See United States v. Zuniga-Peralta,

442 F.3d 345, 347 (5th Cir. 2006). Additionally, the departure, although

substantial, does not represent an abuse of the district court’s vast sentencing

discretion when considered in light ofthe totality ofthe circumstances. See Gall,

552 U.S. at 51; United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).

Rodriguez raises two additional arguments, which he acknowledges are

foreclosed by our precedent, to preserve for further review. Rodriguez contends

that the district court erred in ordering his sentence to run consecutively to

yet-to-be imposed state sentences. We rejected this claim in United States v.

Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), overruled on other grounds by

United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which remains

binding precedent in this circuit. See United States v. Setser, 607 F.3d 128, 131-

32 (5th Cir. 2010), aff’d, 132 S. Ct. 1463 (2012). Rodriguez also contends that the

district court violated his constitutional rights because facts essential to

determining the sentence were not alleged in the indictment, proved to a jury

beyond a reasonable doubt, or admitted by him. We have consistently rejected

this claim. See United States v. Rhine, 583 F.3d 878, 891 n.50 (5th Cir. 2009).

Lastly, to the extent Rodriguez alleges a violation under Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000), his claim is meritless. See § 2113(a). 

The judgment of the district court is AFFIRMED.