IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40939

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JEAN CARLOS FRANCISCO,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:14-CR-1034

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jean Carlos Francisco challenges his 30-month sentence imposed 

following his guilty-plea conviction for illegal reentry into the United States 

after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1). He contends his 

sentence is procedurally and substantively unreasonable because the court 

improperly considered, and gave significant weight to, a domestic-battery 

arrest, for which the charge was dismissed for lack of sufficient evidence. He 

 

* 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 5, 2016

Lyle W. Cayce

Clerk

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No. 15-40939

2

maintains that arrest is not reliable evidence he was guilty of the conduct 

described.

Although post-Booker, the Sentencing Guidelines are advisory only, and 

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the Guidelines sentencing range for use in deciding on 

the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In 

that respect, for issues preserved in district court, its application of the 

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., 

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United 

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

At sentencing, Francisco made a general objection to the excessiveness 

of the sentence, and for the court’s failing to adequately explain the reasons for 

it. When the court noted Francisco had made “blanket objections” and asked 

for clarification, he noted the court had been aware of his “background” at the 

first sentencing, but did not raise the assertions he now presents on appeal. 

See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (“To preserve error, 

an objection must be sufficiently specific to alert the district court to the nature 

of the alleged error and to provide an opportunity for correction”).

Accordingly, we review only for plain error. E.g., United States v. 

Warren, 720 F.3d 321, 332 (5th Cir. 2013). Under this standard, Francisco 

must show a forfeited plain (clear or obvious) error that affected his substantial 

rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, 

our court has discretion to correct the reversible plain error, but should do so 

only if it seriously affects the fairness, integrity, or public reputation of the 

proceedings. Id. 

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Francisco cites no authority supporting his contention that a statement 

within a Pre-sentence Investigation Report’s (PSR) factual recitation of an 

arrest, where a charge was dismissed for lack of sufficient evidence, means the 

factual recitation lacks sufficient indicia of reliability, such that it is plain error 

for a court to consider it at sentencing. He also fails to acknowledge that “[i]t 

is well-established that prior criminal conduct not resulting in a conviction 

may be considered by the sentencing judge”. United States v. Fuentes, 775 F.3d 

213, 219 (5th Cir. 2014) (internal quotation marks omitted). In other words, 

he has not shown the requisite clear or obvious error. See United States v. 

Fields, 777 F.3d 799, 802 (5th Cir. 2015).

Moreover, a within-advisory-Guidelines sentence, such as Francisco’s, is 

entitled to a presumption of reasonableness. E.g., United States v. Cooks, 589 

F.3d 173, 186 (5th Cir. 2009). “The presumption is rebutted only upon a 

showing that the sentence does not account for a factor that should receive 

significant weight, it gives significant weight to an irrelevant or improper 

factor, or it represents a clear error of judgment in balancing sentencing 

factors.” Id. Here, after weighing the 18 U.S.C. § 3553(a) factors, and 

considering Francisco’s mitigating contentions, the court determined a midrange sentence was appropriate. Because he has failed to demonstrate that, 

by considering the factual recitation in the PSR, the court improperly 

considered and gave significant weight to an improper factor, he again fails, 

concerning the presumption of reasonableness, to show the requisite clear or 

obvious error. See id. 

AFFIRMED.

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