IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10214

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FREDDY GARCIA, also known as Fat Freddy,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CR-208

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Freddy Garcia pleaded guilty to trafficking in methamphetamine, and 

the court sentenced him to 360 months in prison, at the bottom of the advisory 

guideline range as recounted in the presentence report (PSR). On appeal, he 

contends that the base offense level was incorrect because it was based on 

unreliable evidence of drug quantity. He also challenges two-level increases 

based on his making a credible threat of violence at the time of his arrest, 

 

* 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

May 2, 2016

Lyle W. Cayce

Clerk

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No. 15-10214

2

maintaining a premises for drug distribution, and trafficking in 

methamphetamine that had been imported from Mexico.

We review the district court’s factual findings for clear error and affirm 

them if they are plausible in light of the record as a whole. See United States 

v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007). The facts need only be proved by 

a preponderance of the evidence, and the district court was entitled to rely on 

the PSR, which “generally bears sufficient indicia of reliability to be considered 

as evidence by the sentencing judge in making factual determinations.” Id. 

(internal quotation marks and citation omitted). The district court was not 

restricted to information that would be admissible at trial and could properly 

consider hearsay evidence. United States v. Ramirez, 271 F.3d 611, 613 (5th 

Cir. 2001). Garcia had the burden of showing that the information in the PSR 

was materially untrue. Trujillo, 502 F.3d at 357. Conclusional contentions 

are not sufficient to rebut the PSR. See United States v. Londono, 285 F.3d 

348, 355 (5th Cir. 2002).

Garcia’s challenges to drug quantity, maintaining a drug-distribution 

premises, and importation were based on his conclusional assertions that the 

sources cited in the PSR were unreliable or hearsay. Garcia fails to show that 

those findings were implausible. See Trujillo, 502 F.3d at 357; Londono, 285 

F.3d at 355; Ramirez, 271 F.3d at 613. Because the PSR was not based solely 

on “a recitation of the conclusions of the [police] and the prosecutor,” this is not 

a case where bald and conclusional statements were deemed reliable simply 

because they were repeated in the PSR. Cf. United States v. Elwood, 999 F.2d 

814, 817-18 (5th Cir. 1993) (“Bald, conclusionary statements do not acquire the 

patina of reliability by mere inclusion in the PSR.”). Although Garcia argues 

that the PSR relied predominantly on unsubstantiated statements of 

unidentified sources, the PSR also relied on Garcia’s drug sales to undercover 

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law enforcement officers, recorded telephone calls with confidential sources, 

laboratory analysis, and physical evidence discovered through the execution of 

a search warrant, all of which corroborate the unidentified sources’ statements.

As for the enhancement for a threat of force during Garcia’s arrest, the 

arrest was recorded on video which corroborated the arresting officer’s account 

of the fact of a threat. Further, Garcia’s contention that the increase may not 

be based on a threat made during the arrest is reviewed for plain error because 

he did not raise it in the district court. See United States v. MondragonSantiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain error, Garcia was 

required to show, at minimum, a forfeited legal error that was “clear or 

obvious, rather than subject to reasonable dispute.” See Puckett v. United 

States, 556 U.S. 129, 135 (2009). Garcia has pointed to no authority 

establishing beyond reasonable dispute that threats during an arrest may not 

be used to support the enhancement. Garcia fails to show any clear or plain 

error in the guideline calculations.

Moreover, even if we assume that there was some miscalculation of the 

advisory guideline range, any error was harmless if it did not affect the district 

court’s determination of the sentence. See United States v. Delgado-Martinez, 

564 F.3d 750, 753 (5th Cir. 2009). To show harmless error, the Government 

must demonstrate “(1) that the district court would have imposed the same 

sentence had it not made the error, and (2) that it would have done so for the 

same reasons it gave at the prior sentencing.” United States v. Ibarra-Luna, 

628 F.3d 712, 714 (5th Cir. 2010). Because the district court stated in its 

Statement of Reasons that “[e]ven if the guidelines calculations are not correct, 

this is the sentence the Court would otherwise impose under 18 U.S.C. § 3553,”

the Government has made the required showing. See United States v. 

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Richardson, 713 F.3d 232, 237 (5th Cir. 2013); United States v. Rios, 584 F. 

App’x 275, 276 (5th Cir. 2014).

The judgment is AFFIRMED.

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