FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 6, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10505

Non-Argument Calendar

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D. C. Docket No. 06-00339-CR-JEC-1-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

EUGENIO ESTRADA ACOSTA, 

a.k.a. Carlos Estrada Medina, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 6, 2007)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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Eugenio Estrada Acosta appeals his 60-month prison sentence for illegal

reentry in violation of 8 U.S.C. § 1326. That sentence exceeds what the parties

agree is the applicable guideline range of 37–46 months, resulting from an adjusted

offense level of 17 and a criminal history category of IV. 

At the sentence hearing, the district court gave two reasons for selecting the

60-month prison term. The first reason focused on Acosta’s extensive criminal

history, which included: (1) three deportation orders (two of which led to actual

deportations); (2) a prior conviction for illegal reentry; (3) two drug convictions;

(4) a drug-related criminal trespass conviction; (5) failure to appear on a warrant;

and (6) repeated use of false names. It also included Acosta’s May 2003 guilty

plea to simple battery, which resulted from charges that Acosta had harassed a tenyear-old girl and grabbed her buttocks. After recounting all of these things, the

district court said that it would depart upward from Acosta’s criminal history

category, reasoning that a criminal history category of VI—and its corresponding

guideline range of 51–63 months—would more accurately reflect this “serious

criminal record.” Alternatively, the district court exercised its power under United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), to exceed the advisory

guidelines range, citing “the purpose of deterrence and protection of society and all

the other things I am supposed to consider.”
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Acosta’s sole contention on appeal is that the district court violated his due

process rights by increasing his sentence on the basis of the facts underlying the

charges which resulted in his May 2003 guilty plea to battery, which he describes

as “uncorroborated, unreliable allegations that he has [never] admitted to and for

which he has never been convicted.” As he did before the district court, Acosta

cites the reasoning in Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143

(1990), to support his argument that the bare allegations contained in the relevant

charging documents fail to provide a sufficiently reliable understanding of his

actual conduct. 

The Taylor decision does not dictate the outcome of this case. To the Taylor

Court, the “practical difficulties and potential unfairness” inherent in relying on the

surrounding facts leading to a defendant’s guilty plea were a factor in answering

the question “whether the sentencing court in applying [the sentence enhancement

specified in 18 U.S.C.] § 924(e) must look only to the statutory definitions of the

prior offenses” that would trigger the enhancement and not other evidence

concerning those offenses. Id. at 600, 601, 110 S. Ct. at 2159. In other words, the

Court was explaining how to apply § 924(e), not how to apply the sentencing

guidelines. It was certainly not addressing the requirements of due process.

Even if we accept, however, the premise that charging documents are less
4

reliable than some other sources of evidence, Acosta has not met his burden of

establishing a due process violation. “Where a defendant claims that his due

process rights have been violated by the sentencing court’s reliance on false or

unreliable information, he must make a showing of two elements: (1) that the

challenged evidence is materially false or unreliable, and (2) that it actually served

as the basis for the sentence.” United States v. Reme, 738 F.2d 1156, 1167 (11th

Cir. 1984). At sentencing, Acosta speculated that there might be “a family

situation involved” between himself and the ten-year-old victim of his harassment,

the apparent implication being that this circumstance might somehow lessen the

egregiousness of his conduct. That was the extent of Acosta’s challenge to the

reliability of the information from the police reports. Acosta never actually

challenged the accuracy of the facts reported in presentence investigation report,

which for present purposes means that he has admitted those facts. See United

States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), cert. denied, 127 S. Ct. 2096

(2007). 

AFFIRMED.