United States v. Gilberto Torres-Ordonez

FILED
NOT FOR PUBLICATION JAN 06 2011
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. 09-50476
Plaintiff - Appellee, D.C. No. 3:08-cr-00723-H-1
v.
MEMORANDUM *
GILBERTO TORRES-ORDONEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted December 9, 2010
Pasadena, California
Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.
Gilberto Torres-Ordonez (“Torres”) appeals his 65-month sentence for
unlawful reentry after deportation in violation of 8 U.S.C. § 1326. Torres argues,
first, that the documents used to prove that a 1992 robbery conviction pertained to
him, and thereby to make him eligible for a 16-level enhancement under U.S.S.G.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 2L1.2(b)(1)(A)(ii), were inadmissible under Melendez-Diaz v. Massachusetts,
129 S. Ct. 2527 (2009). Torres maintains, second, that even if the enhancement
was properly applied, his sentence was substantively unreasonable. We affirm.
1. We reject Torres’s first argument because the Confrontation Clause does
not apply to sentencing. United States v. Littlesun, 444 F.3d 1196, 1199-1200 (9th
Cir. 2006). Instead, evidence introduced at sentencing need only contain “minimal
indicia of reliability” to comport with due process. United States v. Horvath, 522
F.3d 904, 905-06 (9th Cir. 2008) (citation omitted). The evidence relied upon by
the district court to find that the 1992 robbery conviction was that of Torres meets
this standard. See United States v. Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir.
2009); United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998).
2. It appears that the district court may have used a preponderance of the
evidence standard rather than a higher standard when it found the 1992 robbery
conviction was Torres’s and therefore supported a 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). As our precedents make clear, when a sentencing
factor has a “disproportionate effect” on a defendant’s sentence, it must be found
by clear and convincing evidence. See, e.g., United States v. Bonilla Montenegro,
331 F.3d 1047, 1050 (9th Cir. 2003); United States v. Jordan, 256 F.3d 922, 928
(2001). The enhancement here had such an effect on Torres’s sentence. See
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Bonilla Montenegro, 331 F.3d at 1050. But Torres failed to argue that the district
court used the wrong standard either to the district court or to this panel, and has
thus not even attempted to carry his burden of demonstrating that this error
affected his substantial rights, which is far from apparent. See United States v.
Marcus, 130 S. Ct. 2159, 2164-65 (2010). Accordingly, we decline to exercise our
discretion to correct any error. See United States v. Lyons, 472 F.3d 1055, 1071
(9th Cir. 2007).
3. The district court did not abuse its discretion in sentencing Torres to a 65-
month term of imprisonment. United States v. Overton, 573 F.3d 679, 700 (9th
Cir. 2009). Significant factual differences render unavailing Torres’s argument
that his sentence is substantively unreasonable under United States v. Amezcua
Vasquez, 567 F.3d 1050 (9th Cir. 2009). First, Torres’s criminal history is
substantially more extensive than was that of Amezcua Vasquez. Second, Torres
has a prior conviction for illegal reentry and has been incarcerated for nine of the
fifteen years prior to his sentencing for the instant crime. Moreover, and unlike in
Amezcua Vasquez, the district court did take the age of Torres’s robbery conviction
into account by reducing Torres’s total offense level by three. Whether or not
Torres is right that a lower sentence is more appropriate, “[t]he fact that [we] might
reasonably [conclude] that a different sentence [is] appropriate is insufficient to
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justify reversal of the district court.” Amezcua Vasquez, 567 F.3d at 1055 (quoting
Gall v. United States, 552 U.S. 38, 51 (2007) (alterations in original)).
Affirmed.
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