IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30698

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHNNY D. MATHIS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:08-CR-372-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Johnny D. Mathis pleaded guilty to criminal interference with a right to

fair housing, a violation of 42 U.S.C. § 3631, and use of a firearm during a crime

of violence, a violation of 18 U.S.C. § 924(c). He received a within-guidelines

sentence of 60 months of imprisonment for his § 3631 conviction and a

consecutive sentence of 120 months for the § 924(c) conviction. On appeal,

Mathis argues that the district court committed a procedural error in its

calculation of the applicable guidelines range for his § 3631 conviction.

United States Court of Appeals

Fifth Circuit

F I L E D

April 19, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-30698

The United States Sentencing Guideline applicable to a violation of § 3631

is U.S.S.G. § 2H1.1, which, in this case, specified that the base offense level is

the greatest offense level from the Guidelines applicable to any underlying

offenses. The district court adopted the presentence report’s (PSR’s) findings

that the most analogous underlying offenses were aggravated assault and arson

and that the Guideline for an arson offense produced the greatest offense level. 

Mathis argues on appeal that the district court erred in applying the arson

Guideline because he has continually denied setting fire to the victims’

residence, he did not plead guilty to a third count that alleged he had used fire

to commit a felony in violation of 18 U.S.C. § 844, tests of the burned premises

found no evidence of the use of ignitable liquids or accelerants, and it is just as

plausible that the food the victims left cooking on the stove accidentally started

the fire that destroyed their house.

Following United States v. Booker, 543 U.S. 220 (2005), we review

sentences for reasonableness in light of the sentencing factors in 18 U.S.C.

§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). 

Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we first determine

whether the sentence imposed is procedurally sound, including whether the

calculation of the advisory guidelines range is correct. We review the district

court’s interpretation and application of the Sentencing Guidelines de novo and

its findings of fact for clear error. United States v. Cisneros-Gutierrez, 517 F.3d

751, 764 (5th Cir. 2008). 

Factual findings under the Guidelines “must be based on reliable

information and a preponderance of the evidence.” United States v. Conner, 537

F.3d 480, 491-92 (5th Cir. 2008). “Generally, a PSR bears sufficient indicia of

reliability to permit the sentencing court to rely on it at sentencing. The

defendant bears the burden of demonstrating that the PSR is inaccurate; in the

absence of rebuttal evidence, the sentencing court may properly rely on the PSR

and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009)

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No. 11-30698

(internal quotation marks and citation omitted). Rebuttal evidence presented

by the defendant must show that the PSR’s information is materially untrue,

inaccurate or unreliable. United States v. Parker, 133 F.3d 322, 329 (5th Cir.

1998).

We conclude that the district court’s finding, based on its adoption of the

information in the PSR, that Mathis set fire to the victims’ residence was based

on reliable evidence and was established by a preponderance of the evidence,

particularly statements from the victims regarding the actions of Mathis and

reports from two separate arson investigations. Mathis has not presented

sufficient rebuttal evidence to demonstrate that the PSR was materially untrue,

inaccurate or unreliable. See Parker, 133 F.3d at 329. Therefore, the district

court was entitled to adopt the PSR. See Ollison, 555 F.3d at 164. As Mathis

has not shown that the district court clearly erred in finding that he set the fire,

he has not shown that the district court procedurally erred by using the arson

Guideline to determine his base offense level under § 2H1.1.

Therefore, his sentence is AFFIRMED.

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