United States of America v. ABEL EDUARDO MONTOYA- GAXIOLA, AKA Abel Montoya-Gaxiola

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABEL EDUARDO MONTOYA-
GAXIOLA, AKA Abel Montoya-Gaxiola,
Defendant - Appellant.
No. 13-10479
D.C. No. 4:12-cr-01073-JGZ-
CRP-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted May 11, 2015
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges and KOBAYASHI,** District Judge.
Abel Montoya-Gaxiola (“Abel”) appeals his enhanced sentence, pursuant to
18 U.S.C. § 922(g)(5)(A) and U.S.S.G. § 2K2.1(b)(6)(B), for possession of a
FILED
AUG 10 2015
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.
** The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.

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firearm or ammunition by an illegal alien in connection with another felony
offense. Abel, his brother Rosario Montoya-Gaxiola (“Rosario”), and Fermin
Ruiz-Bracamontes (“Ruiz”) were apprehended in the Arizona desert with or near
blankets, large backpacks with significant food rations, a radio scanner, multiple
cellular telephones, three firearms, and ammunition.1 All three made statements to
border patrol agents.
They were each charged with illegal reentry and firearm possession, and
various drug and firearm conspiracy charges. Ruiz pled guilty to certain charges
and, as part of his plea agreement, the Government dismissed the others. The
Montoya brothers pled guilty to illegal reentry, but went to trial on the other
charges against them.2
After four days of Government testimony, the district court directed a
verdict in favor of the Montoya brothers on the conspiracy charges. Although the
district court stated that the Montoya brothers were clearly “up to no good,” it
1 To avoid confusion, we refer to the Montoya brothers individually by their
first names, as warranted.
2 In an opinion filed concurrently with this memorandum disposition, we
reversed Rosario’s conviction on Count V relating to the firearm possession charge
under 28 U.S.C. § 5861(d). See United States v. Montoya-Gaxiola, No. 14-10255
(9th Cir. filed August 10, 2015).
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found that the Government had offered insufficient evidence of a specific plan or
agreement to conspire to steal and sell drugs for those charges to go to the jury.
The jury convicted on the remaining charges, including the firearm possession
charge against Abel.
At Abel’s sentencing, the district court considered Ruiz’s post-arrest
statement as well as the factual predicate to his plea agreement, which he assented
to at his change of plea hearing before the magistrate judge. It found that Ruiz’s
statements were sufficiently reliable to consider at sentencing and determined that
they, along with the evidence deduced at trial, proved by clear and convincing
evidence that, for sentencing purposes, Abel had been part of a conspiracy. Abel
contends that the district court’s reliance on Ruiz’s statements violated his Fifth
Amendment right to due process and Sixth Amendment right to confrontation. We
reject these arguments, and affirm.
The right to confrontation does not apply at sentencing. See, e.g., Williams
v. New York, 337 U.S. 241, 250-51 (1949); United States v. Petty, 982 F.2d 1365,
1367-68 (9th Cir. 1993); U.S.S.G. § 6A1.3(a). However, we have held that “a
defendant clearly has a due process right not to be sentenced on the basis of
materially incorrect information.” Petty, 982 F.2d at 1369. “Due process requires
that some minimal indicia of reliability accompany a hearsay statement.” United
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States v. Horvath, 522 F.3d 904, 906 (9th Cir. 2008) (order denying rehearing en
banc) (citation and internal quotation marks omitted). We review the reliability of
evidence presented at sentencing for abuse of discretion. See United States v.
Hernandez-Guerrero, 633 F.3d 933, 935 (9th Cir. 2011).
The district court did not abuse its discretion in finding Ruiz’s statements
reliable. Unlike in United States v. McGowan, 668 F.3d 601, 606-08 (9th Cir.
2012), and United States v. Jordan, 256 F.3d 922, 931-33 (9th Cir. 2001), Ruiz’s
statements were corroborated by ample evidence presented at trial, such as the
agents’ testimony, the Montoya brothers’ statements, and items found at the arrest
scene. Rather than contradict the evidence at trial, Ruiz’s statements completed the
picture of what exactly the three men were doing in the desert. Thus the district
court’s conclusion that Ruiz’s statements were reliable was not “illogical,
implausible or without support in inferences that may be drawn from the facts in
the record.” Meier v. Colvin, 727 F.3d 867, 869-70 (9th Cir. 2013) (citing United
States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc)). For similar
reasons, the district court did not abuse its discretion in concluding that the
Government established Abel’s involvement in a conspiracy by clear and
convincing evidence.
AFFIRMED.
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