United States of America v. Jose Edgar Amparo-Palomares

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE EDGAR AMPARO-PALOMARES,
Defendant - Appellant.
No. 13-50144
D.C. No. 3:12-cr-04360-LAB-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE EDGAR AMPARO-PALOMARES,
Defendant - Appellant.
No. 13-50158
D.C. No. 3:10-cr-00929-BEN-1
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted July 8, 2014
Pasadena, California
FILED
JUL 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: BERZON and CLIFTON, Circuit Judges, and ROSENTHAL, District
Judge.**
These consolidated appeals concern Jose Edgar Amparo-Palomares’
(“Amparo”) consecutive sentences for (1) illegal reentry in violation of 8 U.S.C.
§ 1326; and (2) violating the terms of supervised release from a prior illegal
reentry conviction. We affirm.
(1) The district court did not procedurally err in considering evidence
regarding Amparo’s 2005 conviction for false imprisonment by fraud or deceit in
violation of California Penal Code §§ 236, 237(a).
“[I]n determining the particular sentence to be imposed,” the district court
was required to “consider– . . . the need . . . to protect the public from further
crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). A defendant’s “potential for
danger to the community [is thus] a § 3553(a)(2) factor that may properly be
considered” by a sentencing judge. United States v. Miqbel, 444 F.3d 1173, 1175
n.3 (9th Cir. 2006). In making that determination, the district court was entitled to
look beyond the record of conviction to determine whether the facts supporting
** The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
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Amparo’s arrest suggested he would pose such a danger. See, e.g., United States v.
Christensen, 732 F.3d 1094, 1104 & n.2 (9th Cir. 2013).
The colloquy at sentencing makes clear that the district court was aware that
Amparo’s crime did not “involve violence, per se,” and that the crime to which
Amparo pleaded guilty was not the same as the one for which he was arrested or
charged. What the district court characterized as Amparo’s “dangerousness”
focused on Amparo’s failure to return the young girl to her mother, an accurate
description of what occurred even on Amparo’s own account.
Nor did the district court violate Amparo’s due process rights by considering
hearsay statements of the alleged victims contained in police reports. Courts may
consider “information relevant to the sentencing determination ‘without regard to
its admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.’”
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (quoting U.S.S.G.
§ 6A1.3(a)). Given the similarities among the witnesses’ statements, as well as the
similarities between Amparo’s own statement and those of the alleged victims, the
police reports had “the requisite indicia of reliability” to allow for their
consideration at sentencing. United States v. Mara, 523 F.3d 1036, 1039 (9th Cir.
2008).
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(2) Amparo’s 18-month sentence for illegal reentry was not substantively
unreasonable. The district court provided a “rational and meaningful” explanation
of its decision to vary upward from the Sentencing Guidelines, relying primarily on
the need to deter Amparo from committing future immigration violations and the
ineffectiveness of other courts’ prior, shorter sentences for the same conduct.
United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir. 2011) (quotation
marks and citations omitted).
(3) Nor was Amparo’s 14-month sentence for violating the terms of his
supervised release substantively unreasonable. The district court did not punish
Amparo for committing a new illegal reentry in violation of 8 U.S.C. § 1326, but
rather sanctioned him for a breach of the court’s trust. See Miqbel, 444 F.3d at
1182 (“[A]t a revocation sentencing, a court may appropriately sanction a violator
for his ‘breach of trust,’ but may not punish him for the criminal conduct
underlying the revocation.”). The district court was aware that Amparo had
already been sentenced to 18 months imprisonment for the new illegal reentry
conviction, and was exercising its discretion to sanction Amparo for violating the
terms of his supervised release.
AFFIRMED.
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