                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          AUG 10 2015

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-10479

              Plaintiff - Appellee,              D.C. No. 4:12-cr-01073-JGZ-
                                                 CRP-2
 v.

ABEL EDUARDO MONTOYA-                            MEMORANDUM*
GAXIOLA, AKA Abel Montoya-Gaxiola,

              Defendant - Appellant.


                    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


        *
             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.
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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