IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40509

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICARDO JOSUE GUTIERREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:13-CR-721-4

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Ricardo Josue Gutierrez pleaded guilty, pursuant to a plea agreement, 

to harboring an undocumented alien for financial gain. Although Gutierrez’s 

guidelines range of imprisonment was 51 to 63 months of imprisonment, the 

district court upwardly departed, imposing a 120-month sentence. The upward 

departure was based on the district court’s finding, adopted from 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.

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2015

Lyle W. Cayce

Clerk

 

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No. 14-40509

presentence report (PSR), that during the course of the offense, Gutierrez twice 

raped an undocumented alien in his care, once at gun point. 

Gutierrez now argues that the district court clearly erred by (1) finding 

that he raped an undocumented alien and (2) relying exclusively on the PSR

for that finding. To show that the district court’s factual finding is clearly 

erroneous, Gutierrez must show that it is not “plausible in light of the record 

as a whole.” United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). 

However, because Gutierrez did not object in the district court to the PSR’s

being the sole evidentiary support for the finding, review of that issue is for 

plain error. See United States v. Fernandez, 770 F.3d 340, 344-45 & n.9 (5th 

Cir. 2014). Under that standard, Gutierrez must show an error that is clear or 

obvious and that affects his substantial rights before we will consider whether, 

in our discretion, to remedy it. See United States v. Rodriguez-Rodriguez, 775 

F.3d 706, 713 (5th Cir. 2015).

The facts in the PSR were obtained from Homeland Security 

investigative materials, including statements by the rape victim and other 

material witnesses. As the PSR thus had an adequate evidentiary basis with 

sufficient indicia of reliability and Gutierrez presented no evidence other than 

his statement denying the rapes, the district court was free to adopt the facts 

from the PSR. United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) 

(internal quotation marks and citation omitted). 

The finding that Gutierrez twice raped an undocumented alien in his 

care is plausible in light of the record as a whole and therefore not clearly 

erroneous. See Zuniga, 720 F.3d at 590. Moreover, we have specifically 

rejected the argument that a district court may not rely solely on the PSR 

where the facts are disputed. United States v. Bates, No. 95-50111, 1995 WL 

581888, 8 (5th Cir. Sept. 21, 1995) (unpublished); see also 5TH CIR. R. 47.5.3 

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No. 14-40509

(unpublished opinions issued prior to January 1, 1996, are precedential). 

Accordingly, Gutierrez has not demonstrated that the district court plainly 

erred by relying exclusively on the PSR for its finding.

The judgment of the district court is AFFIRMED.

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