IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51315

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

SERGIO MICHEL-VILLALOBOS, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 3:16-CR-328-1 

Before KING, ELROD, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Sergio Michel-Villalobos appeals his above-guidelines sentence of 60 

months of imprisonment arising from his guilty-plea conviction for attempted 

illegal reentry after deportation. Michel-Villalobos asserts that his sentence 

was unreasonable in that the district court improperly relied upon informal 

and unauthenticated foreign documents as evidence of charges and convictions 

rendered by a foreign judicial system lacking adequate due process protections. 

 

* 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, 2017

Lyle W. Cayce

Clerk

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No. 16-51315

2 

“We review the reasonableness of a sentence for abuse of discretion, 

whether it is inside or outside the guidelines range.” United States v. Fuentes, 

775 F.3d 213, 218 (5th Cir. 2014) (internal quotation marks and citation 

omitted). Sentences are reviewed for both procedural and substantive 

reasonableness, and the district court’s application of the sentencing 

guidelines is reviewed de novo while its factual findings are reviewed for clear 

error. Id. at 218-19. 

In evaluating the procedural reasonableness of a sentence, we consider

whether the district court committed a significant procedural error, such as 

failing to calculate or incorrectly calculating the guidelines range, treating the 

Guidelines as mandatory, failing to consider the § 3553(a) sentencing factors, 

or basing the sentence on clearly erroneous facts. Id. at 218. The record does 

not support Michel-Villalobos’s first procedural argument that the district 

court erroneously based his sentence on uncharged foreign criminal conduct. 

The district court made clear that it was not relying on Michel-Villalobos’s 

Mexican “rap sheet” or a media report referencing his arrest for a Mexican 

theft offense, but was focusing instead on “the controlling issue” of his valid 

Mexican homicide conviction. 

Neither is there merit to Michel-Villalobos’s contention that the district 

court erroneously relied upon the allegedly inadequate documentation 

underlying the finding of the presentence report (PSR) regarding his Mexican 

homicide conviction. Michel-Villalobos failed to establish with rebuttal 

evidence, or even to assert in the district court or in this appeal, that the PSR’s 

finding that he had been convicted of homicide in Mexico was materially 

untrue. See United States v. Nava, 624 F.3d 226, 230-31 (5th Cir. 2010). The 

district court was therefore free to adopt the PSR’s finding regarding the 

existence of that conviction without further inquiry. See United States v. Mir, 

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3 

919 F.2d 940, 943 (5th Cir. 1990); see also United States v. Ramirez, 367 F.3d 

274, 277 (5th Cir. 2004).

Third, there is no merit to Michel-Villalobos’s challenge to the district 

court’s consideration of his Mexican homicide conviction based on the Mexican 

judicial system’s allegedly inadequate due process protections. The defendant 

has the burden of proving the constitutional invalidity of a prior conviction 

used for sentencing purposes. United States v. Richardson, 781 F.3d 237, 249 

(5th Cir. 2015). Michel-Villalobos has failed to carry this burden, as he has not 

even asserted in either the district court or this court that he was personally 

deprived of due process in his own Mexican homicide conviction proceedings. 

Finally, Michel-Villalobos has likewise failed to establish that his 

sentence was substantively unreasonable in light of the 18 U.S.C. § 3553(a) 

sentencing factors. See Fuentes, 775 F.3d at 218. A district court’s decision to 

depart upward does not constitute an abuse of discretion “if the district court’s 

reasons for departing: (1) advance the objectives set forth in [§ 3553(a)(2)], and 

(2) are justified by the facts of the case.” United States v. Zelaya-Rosales, 707 

F.3d 542, 546 (5th Cir. 2013) (internal quotation marks and citation omitted). 

While Michel-Villalobos reasserts his procedural arguments in contending that 

an upward departure was not supported by the facts of this case, he has failed 

to brief, and has thereby abandoned, any argument that the district court’s 

reasons for upwardly departing did not advance the objectives of § 3553(a)(2). 

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because MichelVillalobos has thus failed to establish that the district court’s sentence was 

substantively unreasonable as an upward departure, his challenge to the 

district court’s alternative variance basis for the sentence need not be 

considered. See Fuentes, 775 F.3d at 219. 

The judgment of the district court is AFFIRMED. 

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