United States v. William Hugs, Sr. ( 2013 )

FILED
NOT FOR PUBLICATION FEB 13 2013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. 12-30209
Plaintiff - Appellee, D.C. No. 1:11-cr-00055-RFC
v.
MEMORANDUM *
WILLIAM ESLEY HUGS, Sr.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief Judge, Presiding
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
William Esley Hugs, Sr., appeals from the district court’s judgment and
challenges the 18-month sentence imposed following his guilty-plea conviction for
conspiracy to traffic in eagles and migratory birds, in violation of 18 U.S.C. § 371.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hugs contends that the district court violated his due process rights by
relying on hearsay evidence to determine the market value of the trafficked birds
under U.S.S.G. § 2Q2.1(b)(3)(A)(ii). Hugs does not contest that the court may
consider hearsay evidence at sentencing, but argues that the evidence relied upon
by the court lacked sufficient indicia of reliability. See United States v. Petty, 982
F.2d 1365, 1369 (9th Cir. 1993) (“Due process requires that some minimal indicia
of reliability accompany a hearsay statement.”). We review the district court’s
determination of reliability for abuse of discretion. See id.The court relied upon a sworn affidavit prepared by a special agent of the
United States Fish and Wildlife Service, in which the affiant estimated the
reasonable replacement cost for the illegally-trafficked birds based on information
provided by an expert in the field. See U.S.S.G. § 2Q2.1 cmt. n.4 (where the fair-
market retail price is “difficult to ascertain,” market value can be determined by
reasonable replacement costs). The court did not abuse its discretion by finding
that the affidavit possessed sufficient indicia of reliability.
AFFIRMED.
2 12-30209