Case: 20-10090     Document: 00515601011         Page: 1     Date Filed: 10/14/2020




              United States Court of Appeals
                   for the Fifth Circuit
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                       October 14, 2020
                                  No. 20-10090                           Lyle W. Cayce
                                Summary Calendar                              Clerk



   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Emilio Marquez Gomez,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:19-CR-372-1


   Before Jones, Barksdale, and Stewart, Circuit Judges.
   Per Curiam:*
          Emilio Marquez Gomez pleaded guilty to one count under 8 U.S.C.
   § 1326(a) & (b)(2)of illegal reentry after removal from the United States and
   was sentenced at the high-end of the advisory Sentencing Guidelines
   sentencing range to 125-months’ imprisonment. In claiming the district



          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10090      Document: 00515601011           Page: 2    Date Filed: 10/14/2020




                                     No. 20-10090


   court relied on information in the presentence investigation report (PSR)
   during sentencing that did not possess sufficient indicia of reliability,
   Marquez challenges the court’s reliance on the PSR’s stating he “is a
   suspected member of the ‘Mexican Mafia’ and goes by the gang name,
   ‘Chico’”; and maintains this claimed procedural error was not harmless.
          Only this claimed procedural error is at issue: Marquez contends the
   district court improperly based its sentence on erroneous facts. Although,
   post-Booker, the Guidelines are advisory only, the district court must, inter
   alia, avoid significant procedural error, such as selecting a sentence based on
   clearly-erroneous facts. Gall v. United States, 

, 46, 51 (2007). In
   that respect, for issues preserved in district court, its application of the
   Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
   United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008).
          “A finding of fact is clearly erroneous only if, after reviewing all the
   evidence, [the reviewing court is] left with the definite and firm conviction
   that a mistake has been committed.” United States v. Serfass, 

,
   550 (5th Cir. 2012) (internal citations and quotations omitted). In its finding
   of facts, the district court may, inter alia, rely on facts contained in the PSR
   provided “those facts have an evidentiary basis with sufficient indicia of
   reliability and the defendant does not present rebuttal evidence or otherwise
   demonstrate that the information is materially unreliable”. United States v.
   Hearns, 

, 650 (5th Cir. 2017) (internal quotation and citations
   omitted); Guideline § 6A1.3(a).
          As noted, the PSR stated Marquez “is a suspected member of the
   ‘Mexican Mafia’” based on records from the Texas Department of Criminal
   Justice (TDCJ). Marquez, in objecting to the PSR’s inclusion of this fact,
   claimed this information was conclusory and based on flawed law-
   enforcement record-keeping because a prior PSR from his 2011 arrest did not




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Case: 20-10090     Document: 00515601011        Page: 3   Date Filed: 10/14/2020




                                 No. 20-10090


   mention his gang membership or affiliation. Marquez, however, failed to
   show the PSR’s information was unreliable. See 

.
   There was no clear error.
         AFFIRMED.




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