Case: 19-11299 Date Filed: 12/12/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11299
Non-Argument Calendar
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D.C. Docket No. 8:18-cr-00533-RAL-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE IGNACIO MORALEZ ABAD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 12, 2019)
Before WILLIAM PRYOR, JORDAN and NEWSOM, Circuit Judges.
PER CURIAM:
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Jose Moralez Abad appeals his sentence of 21 months of imprisonment for
illegally reentering the United States following deportation for a felony offense. 8
U.S.C. § 1326(a), (b)(1). Abad argues that the district court imposed an
unreasonable sentence and violated his right to due process by crediting unreliable
hearsay in his presentence investigation report about his prior conviction for
unlawful sexual contact with a minor. He argues that the district court erred by
relying on a summary of a police officer’s “sworn affidavit” that recounted the
victim’s version of events. But the record makes clear that the district court did not
consider the disputed facts about Abad’s prior conviction in determining his
sentence. We affirm.
We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States,
552 U.S. 38, 51 (2007). To determine whether a sentence is
procedurally reasonable, we review legal issues de novo and related factual
findings for clear error. United States v. Arguedas,
86 F.3d 1054, 1059 (11th Cir.
1996). The district court may consider hearsay during a sentencing hearing so long
as the evidence has sufficient indicia of reliability and the defendant is given the
opportunity to rebut the evidence. United States v. Ghertler,
605 F.3d 1256, 1269
(11th Cir. 2010). A district court does not violate a defendant’s right to due process
by relying on hearsay evidence unless it is materially false or unreliable and it
served as the basis for the defendant’s sentence.
Id. The defendant “bears the
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burden of showing that the court explicitly relied on the information.”
Id. (internal
citation and quotation marks omitted).
Abad’s sentence is procedurally reasonable. Contrary to Abad’s argument,
the district court relied only on “the undisputed factual statements” in his
presentence report and not on the disputed summary. See
Gall, 552 U.S. at 51. The
district court was “troubl[ed]” by Abad’s nine prior convictions for “no valid
driver’s license [ or] driving on [a] suspended license,” the most recent of which
resulted in his conviction for reentering the United States illegally. Although the
district court mentioned Abad’s prior conviction for unlawful sexual activity, it did
so in conjunction with other prior convictions to highlight the extent of his criminal
history and never alluded to the disputed facts underlying the conviction. So the
district court did not abuse its discretion. Nor did it violate Abad’s right to due
process.
We AFFIRM Abad’s sentence.
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