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United States v. Fields

United States Court of Appeals, Fifth Circuit

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
CORY DALE FIELDS, Defendant-Appellant

          Appeal from the United States District Court for the Northern District of Texas

          Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

         Cory Dale Fields pleaded guilty to possessing a firearm as a felon. The district court imposed an upward variance at sentencing, relying in part on the presentence report's description of two instances where Fields was arrested and charged with offenses involving injury to a child. In both cases, as the PSR noted, the charges were ultimately no-billed by Texas grand juries. Fields argues that in light of the no-bills, the PSR's description of the conduct underpinning his prior arrests was insufficiently reliable for the district court to take the arrests into account at sentencing. We disagree, and therefore affirm.

         I

         The presentence report described an extensive criminal history, beginning when Fields was eighteen and continuing for twenty years. Several of the convictions involved lying to or attempting to evade law enforcement. The PSR also listed several instances of "other criminal conduct." As relevant here, it included that Fields was arrested in 2001 and charged with "Injury to a Child/Elderly/Disabled Person with Intent of Bodily Injury" based on a domestic violence incident. Describing the police offense report, the PSR stated that officers were called to Fields's residence, where Fields's then-girlfriend and her son told them that after Fields found the child eating candy while in time-out, he "pushed him by the shoulders and kicked him in the buttocks, causing him to fall against a wall [and] causing him pain." It also included information on another arrest in 2005, which resulted in Fields's being charged with "Injury to a Child/Elderly/Disabled-Bodily Injury." The offense report for the 2005 arrest stated that officers were once again called to Fields's residence, where Fields's girlfriend told them that Fields had yelled at her two children for arguing, one of the children stood up for his brother, and Fields pushed him "into a wall and onto the tile floor," causing the child to scrape his back and hit his head on the wall. In both cases, a Texas grand jury ultimately no-billed the charge.

         The PSR calculated a total offense level of 17 with a criminal history category of IV, yielding a Guidelines range of 37 to 46 months' imprisonment. It also suggested that Fields's past criminal history might warrant an upward departure or a variance. The district court notified Fields before sentencing that it was considering a sentence above the Guidelines range.

         At sentencing, defense counsel argued that a sentence above the Guidelines range was not warranted because Fields's past convictions either directly factored into his level IV criminal history categorization; were connected to offenses that factored into that categorization; or occurred sufficiently long ago that they should not be considered at all. Counsel further argued that there was "no violent history at all," pointing out that while the PSR noted certain arrests-including the 2001 and 2005 arrests for injury to a child-that may have involved violent conduct, all charges resulting from those arrests were no-billed by grand juries. It suggested that "in light of that [no-bill] finding[, there was not] enough reliable information to conclude that [the alleged conduct] occurred."

         The district court described Fields's criminal history as "very disturbing," though it acknowledged that "many of them are minor offenses." It explained that many of Fields's past convictions were not factored into his criminal history category, and more recent offenses reflected a troubling pattern of drug offenses and failure to cooperate with law enforcement. Then, it turned to conduct for which Fields had not been convicted-specifically, the 2001 and 2005 arrests involving injury to children. It stated:

The criminal record goes on for several pages in the Presentence Report after that, and for one reason or another you weren't convicted of any of those offenses, but I can tell from the descriptions of the conduct you had engaged in that in some of those instances . . . . in fact, you did . . . commit the offense that you were charged with.
For example, in . . . paragraph 46, that goes back to when you were 22 years of age, and the offense that you were charged with was abusive conduct toward a child. I don't know . . . all of the circumstances, but I do find from a preponderance of the evidence that you engaged in the conduct that's described in the narrative part in paragraph 46.
Similarly, in paragraph 47, you were charged with injury to a child or elderly person or disabled person, and I can tell-that was no billed by a grand jury, but I can tell from the description of the offense report in paragraph 47 that you engaged in the conduct described there . . . .

         Based on Fields's history and characteristics, the need to promote respect for the law, and the nature of the sentencing offense, the court concluded that a sentence above the top of the Guidelines range of 46 months was warranted under 18 U.S.C. § 3553(a). It sentenced Fields to 60 months' imprisonment, supervised release of 3 years, and a special assessment of $100. Defense counsel objected to the sentence as procedurally and substantively unreasonable for the reasons argued throughout the sentencing hearing.

         Fields now appeals. He solely argues that the PSR's description of the conduct underlying the 2001 and 2005 no-billed arrests was insufficiently reliable for the district court to account for those arrests at sentencing.

         II

         A district court may impose a sentence outside of the Guidelines range if, after considering the factors identified in 18 U.S.C. § 3553(a) and making an "individualized assessment based on the facts presented," the court determines that an outside-Guidelines sentence is warranted.[1] It is "well-established that prior criminal conduct not resulting in a conviction may be considered by the sentencing judge, "[2] as long as the sentencing court finds by a preponderance that the conduct occurred.[3] Where, as here, a defendant objects to the sentence's procedural reasonableness at sentencing, this court reviews claims of procedural error de novo and the district court's factual findings for clear error.[4]

         "[D]istrict courts may consider any information which bears sufficient indicia of reliability to support its probable accuracy."[5] The requirement that the information bear sufficient indicia of reliability means that a sentencing court may not rely on a defendant's "bare arrest record."[6] It also means that even when a PSR provides a more detailed factual recitation of the conduct underlying an arrest, if that recitation lacks sufficient indicia of reliability then "it is error for the district court to consider it at sentencing-regardless of whether the defendant objects or offers rebuttal evidence."[7] If the factual recitation possesses sufficient indicia of reliability, conversely, the sentencing court may consider it unless the defendant objects and offers "rebuttal evidence challenging the truthfulness, accuracy, or reliability of the evidence supporting the factual recitation in the PSR."[8] While "[m]ere objections . . . are generally insufficient," an objection "may sufficiently alert the district court to questions regarding the reliability of the evidentiary basis for the facts contained in the PSR."[9]

         III

         The sentencing court here did not rely on a bare arrest record. Instead, it looked to the PSR's description of two detailed offense reports explaining when, where, and how Fields allegedly engaged in abusive conduct toward his girlfriend's children, and found by a preponderance that he engaged in the conduct described. Our caselaw makes clear that generally, a sentencing court "may properly find sufficient reliability on a presentence investigation report which is based on the results of a police investigation," especially where the offense report is detailed and includes information gathered from interviews with the victim and any other witnesses.[10]

         Fields argues that the PSR's factual recitations of the conduct underpinning his 2001 and 2005 arrests nonetheless lacked sufficient indicia of reliability because grand juries ...


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