United States v. Damaso Arellanes-Zarate
UNITED STATES of America, Plaintiff-Appellee, v. Damaso ARELLANES-ZARATE, Defendant-Appellant
- Proceeding
- appeal
- Trial court
- United States District Court for the Southern District of California
- Trial judge
- Larry Alan Burns (district judge)
- Outcome
- affirmed — AFFIRMED.
- Area
- criminal
- Panel
- Atsushi W. Tashima (author), Smith, Barry G. Silverman
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
FILED NOT FOR PUBLICATION OCT 04 2016
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50055 Plaintiff-Appellee, D.C. No. 3:15-cr-02709-LAB v. MEMORANDUM* DAMASO ARELLANES-ZARATE, Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted September 27, 2016** Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Damaso Arellanes-Zarate appeals from the district court’s judgment and challenges the 18-month sentence imposed following his guilty-plea conviction for improper entry by an alien, in violation of 8 U.S.C. § 1325. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Arellanes-Zarate contends that the district court erred by basing the sentence on unreliable hearsay contained in the presentence report (“PSR”). Contrary to Arellanes-Zarate’s claim, he did not object to the hearsay statements concerning his prior convictions. Thus, the district court did not err by relying on the PSR’s account of his criminal history at sentencing. See United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc) (“district court may rely on undisputed statements in the PSR at sentencing”); see also United States v. Charlesworth, 217 F.3d 1155, 1160 (9th Cir. 2000) (district court may consider unobjected-to statements contained in the PSR).
Arellanes-Zarate also contends that the district court erred by failing to provide notice under Federal Rule of Criminal Procedure 32(h) of its intent to vary above the Guidelines range. As he concedes, this argument is foreclosed by Irizarry v. United States, 553 U.S. 708 (2008).
The government’s motion for judicial notice is denied.
AFFIRMED.
2 16-50055