* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50761

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JORGE ALONSO ARROYOS-FERNANDEZ, also known as Jose

Arvizu-Lukin

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:06-CR-01246-KC-3

Before PRADO, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jorge Alonso Arroyos-Fernandez (“Arroyos”) appeals

the sentence imposed following his plea of guilty to one count of conspiracy to

possess marijuana with intent to distribute. Arroyos challenges two upward

sentence adjustments imposed by the district court. Finding no error in

Arroyos’s sentence, we affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

July 21, 2008

Charles R. Fulbruge III

Clerk
No. 07-50761

2

I. FACTS AND PROCEDURAL HISTORY

Arroyos was charged, along with his brother and another co-conspirator,

in a one-count superseding indictment, with conspiracy to possess with intent

to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. §§

846, 841(a)(1), and 841(b)(1)(C). Arroyos pleaded guilty without a plea

agreement. 

The Presentence Investigation Report (“PSR”) began with a base level of

twenty-four, subtracted three levels for acceptance of responsibility, and added

two levels for Arroyos’s role as a manager/superviser, pursuant to U.S.S.G.

§ 3B1.1(c). This resulted in a total offense level of 23. For criminal history, the

PSR applied one point for Arroyos’s 1991 state drug conviction and one point for

a 2006 federal misdemeanor fraud conviction, resulting in a criminal history

category of II. Combining these metrics, Arroyos’s Guidelines sentence range

was 51 to 63 months. 

Arroyos filed written objections to the manager/supervisor role

enhancement and the scoring of his 2006 fraud conviction, and he renewed these

objections at the sentencing hearing. The district court overruled Arroyos’s

objections and imposed a sentence of 60 months’ imprisonment plus 3 years of

supervised release and a $100 special assessment. Arroyos brought this timely

appeal.

We have jurisdiction to hear a direct appeal of a final judgment in a

criminal case pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 

II. DISCUSSION

A. Role Enhancement

i. Standard of Review

We review a district court’s factual finding that a defendant was a

manager or supervisor under U.S.S.G. § 3B1.1(c) for clear error. United States
No. 07-50761

3

v. Powell, 124 F.3d 655, 667 (5th Cir. 1997). Such a finding is not clearly

erroneous as long as it is plausible in light of the record as a whole. United

States v. Fullwood, 342 F.3d 409, 415 (5th Cir. 2003). 

ii. Analysis

The Sentencing Guidelines provide for a two-level upward adjustment

upon a finding that the defendant was “an organizer, leader, manager, or

supervisor” of the crime. U.S.S.G. § 3B1.1(c). To qualify for this adjustment, 

the defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants. An upward departure

may be warranted, however, in the case of a defendant who did not

organize, lead, manage, or supervise another participant, but who

nevertheless exercised management responsibility over the

property, assets, or activities of a criminal organization.

Id. at cmt. n.2. The sentencing court may consider any relevant information

“without regard to its admissibility under the rules of evidence applicable at

trial, provided thatthe information has sufficientindicia of reliability to support

its probable accuracy.” Id. § 6A1.3(a). We have held that, for sentencing

purposes,“even uncorroborated hearsay evidence is sufficiently reliable.” United

States v. West, 58 F.3d 133, 138 (5th Cir. 1995) (internal quotation marks

omitted). “The defendant bears the burden of showing that the information in

the PSR relied on by the district court is materially untrue.” United States v.

Valencia, 44 F.3d 269, 274 (5th Cir. 1995).

In this case, the district court relied on statements by Arroyos’s coconspirators as supportfor the manager/supervisor adjustment. In a post-arrest

statement referenced in the PSR, one of Arroyos’s co-defendants, Alberto BuenoGorena (“Bueno-Gorena”), stated that Arroyos was “the organization’s head in

Tucson, Arizona,” and that Arroyos and his wife were involved in laundering the

proceeds from the sale of illegal drugs and storing large amounts of currency in

their house. Another co-conspirator, Adimando Penaloza-Aguilar, stated in his
No. 07-50761

1 According to the government, this large quantity of drugs indicates Arroyos was

“clearly not a street-level dealer.”

2

In fact, at sentencing, the government implied that Arroyos’s lack of involvement in

low-leveltrafficking operations actually supports a finding that he was a manager/supervisor.

4

post-arrest statement that Arroyos and Arroyos’s brother, Armando, were “high

level members ofthe organization” and that the marijuana seized in this offense

belonged to them. The district court also took note of recorded phone

conversations in which co-conspirators referenced Arroyos, as well as the fact of

Arroyos’s 1991 conviction for possession of two kilos of cocaine, which suggests

that he had long been involved in the drug trade.1

On appeal, Arroyos contends that the co-conspirators’ statements are

insufficientto supportthe district court’s role adjustment. For example, Arroyos

cites several ofthe co-conspirators’ descriptions of drug operations that make no

mention of Arroyos. However, these statements do not directly rebut the coconspirators’ own statements that Arroyos was a supervisor.2

Arroyos also notes that the co-conspirator statements are unaccompanied

by corroborating evidence. For example, despite Bueno-Gorena’s allegations that

Arroyos and his wife laundered and stashed money, Arroyos asserts that after

a two-year federal investigation, the government has found no evidence to

supportthose allegations. However, corroborating evidence is not required. We

have explicitly held that the district court may rely on uncorroborated hearsay

evidence in sentencing. See West, 58 F.3d at 138.

In light of other evidence, such as phone conversations and Arroyos’s prior

conviction,the district court chose to credit the co-conspirators’ statements. This

was largely a credibility determination, and we give deference to the credibility

determinations of the district court. United States v. Perez, 217 F.3d 323, 332

(5th Cir. 2000) (“We defer to the trial court’s superior position in making such

credibility calls.”).
No. 07-50761

5

Because Arroyos has failed to carry his burden of showing that these facts

lacked sufficient indicia of reliability, we cannot conclude that the district court

clearly erred in its factual finding supporting the role adjustment in this case.

The district court’s factual finding that Arroyos was a manager/supervisor is

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

erroneous. See Fullwood, 342 F.3d at 415. 

B. Criminal History Calculation

i. Standard of Review

We review a district court’s application of the Sentencing Guidelines de

novo. United States v. Cerverizzo, 74 F.3d 629, 630 (5th Cir. 1996). 

ii. Analysis

The district court added a criminal history pointfor Arroyos’s prior federal

misdemeanor conviction for an incident in Arizona in 2006. Immigration and

Customs Enforcement agents came to Arroyos’s door and asked him to identify

himself. Arroyos showed them an Arizona driver’s license issued in a name

other than his own in an attempt to show that he was in the United States

legally. Arroyos was in fact a Mexican citizen in the United States without a

lawful visa. 

Arroyos pleaded guilty to a violation of 18 U.S.C. § 1028(a)(4). That

statute makes it a crime to “knowingly possess[] an identification document

(other than one issued lawfully for the use of the possessor), authentication

feature, or a false identification document, with the intent such document or

feature be used to defraud the United States.” 18 U.S.C. § 1028(a)(4). Arroyos

served a twenty-day sentence in Arizona before he was moved to Texas for

proceedings in the instant case. 

Under the federal Sentencing Guidelines, a prior misdemeanor conviction

does not counttoward a defendant’s criminal history score if it is “similar to” one

of the offenses listed in § 4A1.2(c)(1) or similar to another offense that itself is
No. 07-50761

6

similar to one of the listed offenses. U.S.S.G. § 4A1.2(c)(1). An exception to this

rule applies if “(A) the sentence [in the prior offense] was a term of probation of

at least one year or a term of imprisonment of at least thirty days, or (B) the

prior offense was similar to an instant offense . . . .” U.S.S.G. § 4A1.2(c)(1).

Because Arroyos served only a twenty-day term of imprisonment for his prior

crime, and that crime was not similar to the instant offense, the only relevant

issue here is whether the prior crime was “similar to” one of the offenses listed

in § 4A1.2(c)(1). 

In determining whether a prior offense is “similar to” one of the offenses

listed in §4A1.2(c), this court follows “a common sense approach which relies on

all possible factors of similarity.” United States v. Hardeman, 933 F.2d 278, 281

(5th Cir. 1991). Such factors include 

a comparison of punishments imposed for the listed and unlisted

offenses,the perceived seriousness ofthe offense as indicated by the

level of punishment, the elements of the offense, the level of

culpability involved, and the degree to which the commission of the

offense indicates a likelihood of recurring criminal conduct. 

Id. If the factors, “taken as a whole, indicate that the offense is, like the listed

offenses, neither particularly serious nor likely to indicate recurring criminal

conduct, then the defendant’s prior offense should be excluded.” Id. at 282. “A

court employing the Hardeman factors should do so cognizant ofthe factthatthe

criminal history factors are designed to take into account the relative severity

of a prior offense as well as the degree to which it indicates the likelihood of

future criminal behavior.” United States v. Gadison, 8 F.3d 186, 193 (5th Cir.

1993). In this case we must decide whether, under the Hardeman factors,

Arroyos’s conviction under § 1028(a)(4) is “similar to” the listed crime of false

information to a police officer or a crime similar to it. 

We look to the state “failure to identify” offense under Texas Penal Code

§ 38.02(b) for guidance on defining the generic offense. See United States v.
No. 07-50761

3 Because neither party argues that federal law provides a definition for the listed

offense at issue here, we do not consider that possibility.

7

Reyes-Maya, 305 F.3d 362, 367-68 (5th Cir. 2002) (noting that the Texas failure

to identify offense is similar to the generic offense of “[f]alse information to a

police officer”listed in the Guidelines); see also United States v. Lopez-Pastrana,

244 F.3d 1025, 1028 n.4 (9th Cir. 2001) (“For purposes of comparison, we use the

federal definitions of the listed offenses. Where there is no federal law on

point . . . we may look to either state law or the Model Penal Code.” (citation

omitted)).3 Under the failure to identify statute, “[a] person commits an offense

if he intentionally gives a false or fictitious name, residence address, or date of

birth to a peace officer who has . . . lawfully detained the person.” TEX. PENAL

CODE ANN. § 38.02(b)(2).

Regarding the range of possible punishments, Arroyos’s prior conviction

carried a possible punishment range of up to one year imprisonment, see 18

U.S.C. § 1028(b)(6), while the maximum punishment under § 38.02(b) is 180

days, see TEX. PENAL CODE ANN. §§ 12.22, 38.02(c)(2). However, in terms of

“perceived seriousness,” we consider the actual punishment range given rather

than the statutory range: “More important than the statutory range of

punishments is the actual punishment given, as ‘[t]he level of punishment

imposed for a particular offense serves as a reasonable proxy for the perceived

severity of the crime.’” Reyes-Maya, 305 F.3d at 367 (quoting Hardeman, 933

F.2d at 282). Arroyos received only a twenty-day sentence for his crime, which

suggests a level of seriousness similar to or lower than the generic state crime.

The elements of the two crimes, on the other hand, are dissimilar. A

conviction under § 1028(a)(4) requires a showing that the defendant (1)

knowingly possessed a false identification document, (2) “with intent . . . to

defraud the United States.” 18 U.S.C. § 1028(a)(4). By contrast, the state

failure to identify statute does notinvolve the possession of false documents, but
No. 07-50761

4 The parties rely on our decision in United States v. McDonald, 106 F.3d 1218 (5th Cir.

1997). However, McDonald does not bear directly on this case because it involved comparing

a prior conviction under Texas Penal Code § 38.02(b)(1) with an actual offense under 18

U.S.C. § 1028(a)(3). See McDonald, 106 F.3d at 1220. By contrast, our task in this case is to

decide whether a prior conviction under 18 U.S.C. § 1028(a)(4) is “similar to” the generic

offense of “[f]alse information to a police officer.” 

8

merely makes it a crime to “intentionally give[] a false or fictitious name,

residence address, or date of birth to a peace officer.” TEX. PENAL CODE ANN.

§ 38.02(b). This is a significant difference because, under § 1028(a)(4), an

individual must have undertaken a prior actto obtain a false document, possibly

in anticipation of using itfraudulently. Merely giving false information verbally,

as described by the Texas statute, requires no forethought. The Seventh Circuit

has endorsed such a distinction in this context:

The giving of false [oral] information, as where a person arrested for

speeding claims not to have known the speed limit or to have a

malfunctioning speedometer, is often spontaneous; and the human

proclivity for self-exculpation, which is what usually triggers a

tender of false information to a police officer, is well-nigh universal.

The element of calculation is greater when an individual goes to the

bother of obtaining a false documentin advance of any confrontation

with an officer.

United States v. Caputo, 978 F.2d 972, 978 (7th Cir. 1992). We find this analysis

persuasive. Because seriousness of the offenses is a relevant factor under

Hardeman, it is important to recognize that the crime of using a false

identification document carries a greater level of seriousness than the generic

failure to identify or false information offense.4

Therefore, we are convinced that the elements required for a conviction

under § 1028 indicate a level of seriousness higher than the generic offenses of

false information to a police officer or failure to identify. Accordingly, we hold

that the district court did not err in applying a criminal history point for

Arroyos’s prior § 1028(a)(4) conviction. 
No. 07-50761

9

III. CONCLUSION

Because the district court properly applied upward adjustments to

Arroyos’s sentence for his manager/supervisor role and his prior misdemeanor

conviction, we affirm the sentence imposed by the district court. 

AFFIRMED.