United States v. Dominguez-Luna ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2009
No. 08-50977
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCELINO DOMINGUEZ-LUNA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:08-CR-81-2
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Marcelino Dominguez-Luna (Dominguez) was convicted by a jury of two
counts of transporting illegal aliens for financial gain in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(II). The district court sentenced Dominguez to 45
months of imprisonment on each count of conviction, to run concurrently,
followed by a three-year term of supervised release on each count, also to run
concurrently. Dominguez now appeals his sentence, arguing that the court
violated his due process rights by relying on an accomplice’s uncorroborated
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-50977
hearsay statements in the presentence report (PSR) to increase the number of
aliens that he was accountable for transporting, and that this resulted in a
higher offense level and sentence.
The use of hearsay at sentencing does not violate a defendant’s due process
rights so long as the information has “some minimal indicium of reliability” and
“bear[s] some rational relationship to the decision to impose a particular
sentence.” United States v. Young, 981 F.2d 180, 187-88 (5th Cir. 1992) (internal
quotation and citation omitted). Moreover, “[a]s a general rule, information in
the [PSR] is presumed reliable and may be adopted by the district court without
further inquiry if the defendant fails to demonstrate by competent rebuttal
evidence that the information is materially untrue, inaccurate or unreliable.”
United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (internal quotation
marks and citation omitted).
At sentencing, the district court found that the testimony of a witness
sufficiently corroborated the hearsay statements contained in the PSR.
Dominguez then failed to show by competent rebuttal evidence that the
statements were “materially untrue, inaccurate or unreliable.” Id. We thus find
no error in connection with the district court’s decision to rely on the statements
at sentencing.
Accordingly, the judgment of the district court is AFFIRMED.
2