IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41433

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE CRISTOBAL CANALES-MARTINEZ, also known as Jose Canales, also 

known as Jose Cristoba Canales-M, also known as Jose C. Canales, also known 

as J. Cristobal Canales-Martinez, also known as Jose Cristoba CanalesMartinez, also known as Jose C. Canales-Martinez, also known as Jose 

Martinez-Canales, also known as Jose Martinez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:12-CR-171-1

Before KING, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Jose Cristobal Canales-Martinez (Canales) appeals the bottom-of-theGuidelines sentence of 27 months of imprisonment imposed by the district 

court following his guilty plea conviction of being an alien found unlawfully 

* 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

March 17, 2014

Lyle W. Cayce

Clerk

 

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present in the United States after having been previously deported. For the 

first time on appeal, he contends that the district court’s consideration of bare 

arrest records to deny his request for a sentence below the guidelines range 

renders his sentence procedurally and substantively unreasonable. 

Because the issue was not raised in the district court, our review is for 

plain error. See Puckett v. United States, 556 U.S. 129, 134–35 (2009). To 

demonstrate plain error, Canales must show a forfeited error that is clear or 

obvious and that affects his substantial rights. Id. at 135. If he makes such a 

showing, we have the discretion to correct the error but will do so only if it 

seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. Id. 

Canales argues that the district court imposed a procedurally and 

substantively unreasonable sentence upon him because it considered his bare 

arrest records from 1995 and 1996. Canales’s PSR indicated that he was 

arrested for Driving While Ability Impaired by the Consumption of Alcohol in 

June 1996, and that there was an active arrest warrant for him from December 

1995 arising out of an indictment for Assault in the First Degree and Assault 

in the Second Degree. The PSR does not report the disposition of these charges. 

Additionally, the PSR reported that Canales: (1) was convicted of robbery in 

1993, a first-degree felony; (2) pleaded guilty to Driving While Ability Impaired 

by the Consumption of Alcohol in August 1995, a misdemeanor; and (3) pleaded 

guilty to Aggravated Unlicensed Operation of a Motor Vehicle and Driving 

While Ability Impaired by the Consumption of Alcohol in June 1997, both 

misdemeanors. 

The PSR recommended a Guidelines range of 27 to 33 months’

imprisonment. Canales moved for a downward departure. During the 

sentencing hearing, the district court denied his motion and imposed a 

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sentence of 27 months. The district court commented on Canales’s 1993 

robbery conviction and stated that Canales’s criminal conduct was “extensive.” 

Shortly thereafter, the district court referenced Canales’s criminal conduct

again and stated, “I think this criminal history would require . . . a significant 

sentence in this particular matter.” Canales objected that the sentence was 

“a lot of time” and that he was being imprisoned for “something that [he] 

already paid for.” The district court responded that 

[I]t’s just not your felony conviction . . . . You’ve also got pending 

charges elsewhere . . . . If you had been a good citizen . . . and not 

been just a complete criminal, I might have been -- been more 

imposed [sic] to consider a downward departure, but it would 

appear from your record that you weren’t.

On appeal, Canales explains that the district court’s reference to his 

pending charges was a reference to his arrest record. He argues that the 

district court improperly relied on his bare arrest record in imposing the 

sentence and that this affected his substantial rights by resulting in a longer

sentence.

A district court may not consider at sentencing a defendant’s “bare arrest 

record.” United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012) (quotation 

marks omitted). “The term ‘bare arrest record,’ in the context of a PSR 

describes the reference to the mere fact of an arrest—i.e. the date, charge, 

jurisdiction and disposition—without corresponding information about the 

underlying facts or circumstances regarding the defendant’s conduct that led 

to the arrest.” Id.; see also United States v. Jones, 444 F.3d 430, 434 (5th Cir. 

2006) (“Arrests, standing alone, do not constitute reliable information under 

either the Guidelines or our precedent pre-dating the Guidelines.”) The district 

court clearly referred to the PSR’s account of the June 1996 arrest and 

December 1995 arrest warrant in determining Canales’s sentence. Moreover, 

there is no corresponding information in the PSR that renders the arrests 

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reliable. Thus, the district court’s reliance on these arrests constitutes clear 

error. 

However, to prevail Canales must show that the district court’s error 

affected his substantial rights by “undermining confidence in the outcome.” 

United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (quotation marks, 

brackets, and citations omitted). The record must indicate that there is a 

reasonable probability that Canales would have received a lesser sentence if 

the district court had not considered his prior arrests. See Jones, 444 F.3d at 

438. Canales cannot make this showing. 

The district court did not exclusively rely on the objectionable aspects of 

Canales’s criminal history in determining his sentence; it also took into 

consideration Canales’s three prior convictions, which included a felony 

robbery conviction. Since the district court properly relied on his criminal 

history, Canales has shown only a mere possibility, as opposed to a reasonable 

probability, that the district court would have imposed a lesser sentence had it 

not considered bare arrest records. See United States v. Gonzalez-Achondo, 

493 F. App’x 539, 540 (5th Cir. 2012) (affirming sentence where the district 

court relied on defendant’s lengthy criminal history, which included eight 

convictions, and the sentence was within the guidelines range); United States 

v. Williams, 620 F.3d 483, 496 (5th Cir. 2010) (holding defendant had not 

demonstrated a reasonable probability that he would receive a lesser sentence 

but for the district court’s consideration of his bare arrests when the district 

court also considered his prior convictions and arrests for similar crimes that 

were supported by reliable testimony at trial); Jones, 444 F.3d at 438 (holding 

that defendant could not demonstrate that he would have received a lesser 

sentence when the district court commented on the seriousness of the offense

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at sentencing). Canales fails to make the requisite showing of an effect on his 

substantial rights. See Puckett, 556 U.S. at 135.

AFFIRMED. 

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