United States v. Edgar Toledo-Reyes , 510 F. App'x 658 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50070
Plaintiff - Appellee, D.C. No. 2:11-cr-00659-PA-1
v.
MEMORANDUM *
EDGAR EDUARDO TOLEDO-REYES,
AKA Edgar Torlado-Reyes,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 7, 2013
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Appellant Toledo-Reyes appeals his sentence for violation of 8 U.S.C. §
1327. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291
and we affirm. We review “the district court’s application of the Sentencing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Guidelines to the facts of this case for abuse of discretion, and the district court’s
factual findings for clear error.” United States v. Kimbrew, 406 F.3d 1149, 1151
(9th Cir. 2005) (internal citation omitted). We review the district court’s
evaluation of the reliability of evidence used at sentencing for abuse of discretion.
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001).
The district court did not abuse its discretion in finding the evidence
presented was sufficiently reliable to support application of a two-level sentence
enhancement for causing bodily injury, U.S.S.G. § 2L1.1(b)(7)(A), and a two-level
sentence enhancement for intentional or reckless creation of a substantial risk of
death or serious bodily injury, U.S.S.G. § 2L1.1(b)(6). The sentencing court may
rely on hearsay statements and other evidence not permitted at trial. United States
v. Petty, 982 F.2d 1365, 1367 (9th Cir. 1993). However, to avoid any due process
violation, the evidence must contain minimal indicia of reliability. Id. at 1369.
The sentencing court relied on the following: the hearsay statements of four
smuggled aliens, the medical treatment of three witness-participants, and the
observations of the arresting border patrol officers. Here, the smuggled aliens’
statements corroborate each other and are consistent with the medical evidence and
the observations of the border patrol officers. Berry, 258 F.3d at 976-77.
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Given the reliability of the evidence, there was sufficient evidence to sustain
the enhancements. At sentencing, a defendant is responsible for “all harm that
resulted from” all “reasonably foreseeable acts and omissions of others in
furtherance of [a] jointly undertaken criminal activity[] that occurred during the
commission of the offense of conviction. . . .” U.S.S.G. § 1B1.3(a)(1)(B), (a)(3);
see also United States v. Miguel, 368 F.3d 1150, 1155-56 (9th Cir. 2004). Because
three passengers were injured during the commission of the offense of conviction,
the district court did not abuse its discretion in applying the two-level enhancement
pursuant to U.S.S.G. § 2L1.1(b)(7)(A).
The boat traveled from Mexico to the United States at night over rough seas,
which alone caused the injuries of one passenger. There were insufficient life
vests, and the passenger without a life vest stated that she was afraid she would
drown when the boat capsized. Moreover, the boat actually capsized when it
neared the shore, and at least one passenger was trapped temporarily underneath it,
fearing for his life. We hold that the district court did not abuse its discretion in
applying a two-level enhancement pursuant to U.S.S.G. § 2L1.1(b)(6). See also
United States v. Hernandez-Guardado, 228 F.3d 1017, 1027-28 (9th Cir. 2000).
AFFIRMED.
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