IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41605

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PANCHITA HERNANDEZ-YBARRA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-379-2

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Panchita Hernandez-Ybarra appeals the sentence imposed following her 

guilty plea conviction for conspiracy to transport unlawful aliens within the 

United States by motor vehicle and two counts of transporting unlawful aliens 

within the United States by motor vehicle. For the first time on appeal, 

Hernandez-Ybarra argues that the district court plainly erred at sentencing by 

relying upon testimony given at her co-defendant’s trial without first giving 

 

* 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

July 8, 2016

Lyle W. Cayce

Clerk

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No. 15-41605

2

her notice. She asserts that the error was clear or obvious because this court 

has long held that defendants are entitled to notice and an opportunity to 

respond before a sentencing court can rely upon evidence from other 

proceedings. According to Hernandez-Ybarra, the error affected her 

substantial rights because the district court had not decided to overrule her 

objection to the enhancement for creating a substantial risk of death or serious 

bodily injury until the evidence from her co-defendant’s trial was presented 

and the overruling of her objection substantially raised her guidelines sentence 

range.

Hernandez-Ybarra did not object to the consideration of evidence from 

her co-defendant’s trial in the district court. Accordingly, as HernandezYbarra acknowledges, we review for plain error only. See United States v. 

Cedillo-Narvaez, 761 F.3d 397, 402 (5th Cir.), cert denied 135 S. Ct. 764 (2014). 

To show plain error, Hernandez-Ybarra must show a forfeited error that is 

clear or obvious and that affects her substantial rights. See Puckett v. United 

States, 556 U.S. 129, 135 (2009). If she makes such a showing, we have the 

discretion to correct the error, but should do so only if the error seriously affects 

the fairness, integrity, or public reputation of judicial proceedings. See id.

In determining a sentence, a district court has wide discretion to consider 

all relevant matters. See United States v. Weatherton, 567 F.3d 149, 153-54 

(5th Cir. 2009). However, a district court must notify the defendant and her

attorney of its reliance on facts or factors not contained in the presentence 

report (PSR) so that the defendant has an opportunity to challenge the 

accuracy of the facts on which the court relies. See United States v. Townsend, 

55 F.3d 168, 172 (5th Cir. 1995). Nevertheless, “[i]f the defendant has actual 

knowledge of the facts on which the district court bases an enhancement or a 

denial of a reduction, the Sentencing Guidelines themselves provide notice of 

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the grounds relevant to the proceeding sufficient to satisfy the requirements of 

[Federal Rule of Criminal Procedure 32] and U.S.S.G. § 6A1.3.” United States 

v. Garcia, 797 F.3d 320, 323 (5th Cir. 2015) (internal quotation marks and 

citation omitted).

The district court heard and considered testimony given at the trial of 

Hernandez-Ybarra’s co-defendant, and there is no indication in the record that 

Hernandez-Ybarra received prior notice. However, the testimony from the codefendant’s trial concerned the space in which the transported aliens were 

traveling, and this information was also contained, in detail, in the factual 

basis and the PSR. Indeed, at sentencing, there was no dispute regarding the 

area where the transported aliens were traveling; Hernandez-Ybarra instead 

argued that traveling in that area did not create a substantial risk of death or 

serious bodily injury. As Hernandez-Ybarra “ha[d] actual knowledge of the 

facts on which the district court base[d] [the] enhancement,” she has not shown 

that the district court committed error, plain or otherwise. Garcia, 797 F.3d 

at 323 (internal quotation marks and citation omitted).

AFFIRMED. 

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