                                                                                      FILED
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit

                                                                               January 23, 2013
                                UNITED STATES COURT OF APPEALS
                                                            Elisabeth A. Shumaker
                                                                                  Clerk of Court
                                        FOR THE TENTH CIRCUIT
                                    _________________________________

     UNITED STATES OF AMERICA,

            Plaintiff - Appellee,

v.                                                                   No. 11-2140
                                                           (D.C. No. 2:10-CR-02316-WJ-1)
     JOSE CAIBA-ANTELE,                                                  (D. N. M.)

            Defendant - Appellant.



                                    _________________________________

                                                 ORDER
                                    _________________________________

            Before KELLY, SEYMOUR, and O'BRIEN, Circuit Judges.
                            _________________________________

            This matter is before the court to direct the clerk to issue for publication, sua

     sponte, the Order & Judgment issued in this matter originally on December 7, 2012. The

     decision will be published and reissued nunc pro tunc to the original filing date. A copy

     of the re-issued opinion is attached to this order. The Clerk is directed to file it forthwith.


                                                            Entered for the Court



                                                            ELISABETH A. SHUMAKER, Clerk
                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     December 7, 2012
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

                                      PUBLISH

                  UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                             No. 11-2140

 JOSE CAIBA-ANTELE,

           Defendant-Appellant.


                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 2:10-CR-02316-WJ-1)


Mary Stillinger of El Paso, Texas, for Defendant-Appellant.

Marisa A. Lizarraga, Special Assistant U.S. Attorney (Kenneth J. Gonzales, United States
Attorney, with her on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.


Before KELLY, SEYMOUR, and O’BRIEN, Circuit Judges.


SEYMOUR, Circuit Judge.
       Jose Caiba-Antele pled guilty to reentry of a removed alien, in violation of 8

U.S.C. § 1326. He appeals the district court’s imposition of a variant sentence of fifty-

one months. We AFFIRM.

                                             I.

       On April 18, 2010, Mr. Caiba-Antele was arrested by United States Border Patrol

agents in an area east of the Santa Teresa Port of Entry, in Dona Ana County, New

Mexico. His name was entered into an automated identification system, which reported

that he had previously been ordered removed from the United States to Mexico in 2007

and had been convicted of Reentry of a Removed Alien in 2009. He was charged with

illegal reentry under 8 U.S.C. § 1326. Mr. Caiba-Antele entered into a Rule 11(c)(1)(C)

plea agreement.

       At the initial sentencing hearing, the district court expressed concern that the plea

agreement did not reflect charges brought against Mr. Caiba-Antele by the State of New

Mexico in 2007 for five counts of criminal sexual penetration of a child under thirteen

and one count of criminal sexual penetration of an adult by force or coercion. Mr. Caiba-

Antele was not convicted of these charges; instead, a nolle prosequi order was filed in

August 2009 and the case was dropped. The district court rejected defendant’s plea

agreement and instructed the United States to provide more information about these

dropped charges.

       Mr. Caiba-Antele thereafter pled guilty without a plea agreement. A revised

presentence report (PSR) detailed the facts underlying the state charges brought against

Mr. Caiba-Antele in 2007. On July 11, 2007, Las Cruces police officers arrived at Mr.


                                             -2-
Caiba-Antele’s residence after a disturbance was reported. Mr. Caiba-Antele informed

the officers that he had been in an argument and a scuffle with his brother and other

family members after his fifteen-year-old niece accused him of sexually molesting and

raping her over the course of several years. Later that day, at Mountain View Hospital,

officers interviewed Mr. Caiba-Antele’s niece, as well as the two children of Mr. Caiba-

Antele’s girlfriend, a twelve-year-old male and a female between the ages of twelve and

fifteen. All three children independently accused Mr. Caiba-Antele of sexually abusing

them multiple times over the course of several years. The children, as well as their

parents, were taken to the Las Cruces Police Department for further interviews. During

the interviews, the children each described in detail how Mr. Caiba-Antele had raped and

sexually molested them numerous times over several years in Phoenix, Arizona and later

in Las Cruces, New Mexico. The fifteen-year-old victim told investigators that Mr.

Caiba-Antele said he wanted to impregnate her because his girlfriend was unable to have

more children.

       The PSR indicated that Mr. Caiba-Antele was indicted by a New Mexico grand

jury and charged in counts one through five with causing a twelve-year-old child to

engage in fellatio and anal intercourse on May 9 and May 20, 2007. The sixth count

charged Mr. Caiba-Antele with causing an adult female to engage in sexual intercourse by

the use of force, coercion or credible threats of violence on May 11, 2007. According to

the nolle prosequi order, as described in the PSR, these charges were eventually dropped

due to the psychological harm the victims would suffer if they testified at trial.




                                             -3-
Specifically, the PSR stated that the victim’s family members did not want the children to

testify.

           Mr. Caiba-Antele admitted the procedural history of the charges as described in

the PSR, but filed a written objection to their veracity. Contending he was innocent of the

acts alleged, he asserted the court should not consider those prior charges in sentencing

him because he had not been convicted and because, absent direct testimony from the

alleged victims, the evidence that he had committed the charged crimes lacked sufficient

indicia of reliability.

           The district court held an evidentiary hearing at which two detectives and a state

prosecutor who had been involved in the 2007 case against Mr. Caiba-Antele testified.

Both detectives testified at length about the interviews they had conducted with the

children, and the transcripts of those interviews were entered into evidence. Each

detective independently testified that he found the children’s accusations against Mr.

Caiba-Antele credible because of the level of detail contained in the allegations, the

consistency of their statements, and the children’s demeanor during the interviews. Both

detectives had significant past experience working with child victims of abuse and sexual

molestation.

           The state prosecutor confirmed in her testimony that the charges against Mr.

Caiba-Antele were dropped due to the risk of psychological harm to one of the child

witnesses, who had recently suffered a mental breakdown and attempted suicide, and

because the other child witness wanted to move on with her life and was no longer willing

to testify. Mr. Caiba-Antele objected to the detectives’ testimony as hearsay too


                                                -4-
unreliable to establish his guilt of the charged crimes, particularly without an opportunity

to cross-examine his accusers. He did not testify at the hearing.

       The district court issued a memorandum opinion overruling Mr. Caiba-Antele’s

objections to the PSR. The court found the testimony of the detectives, which was based

on their first-hand observations of the children and their professional experience with

other sexually abused children, to be credible. The court held that Mr. Caiba-Antele had

more likely than not committed the acts of sexual abuse and rape he had been accused of,

and that the evidence of these acts exhibited sufficient indicia of reliability. The court

also calculated that if, hypothetically, Mr. Caiba-Antele had been convicted of the

charges he faced in state court, his guidelines sentencing range for reentry of a removed

alien would have been forty-six to fifty-seven months, in contrast to the range of eight to

fourteen months because the charges were dropped.

       At a final sentencing hearing, the district court heard arguments from both parties

and correctly noted the applicable offense level, criminal history category, guideline

sentencing range of eight to fourteen months, and the statutory maximum sentence of ten

years. The court then examined each of the 18 U.S.C. § 3553(a) sentencing factors in

light of the facts contained in the PSR, including the need for the sentence imposed to

reflect the seriousness of the crime, the importance of deterrence and the necessity of

protecting the public from future crimes. In light of these sentencing factors and the

earlier finding that Mr. Caiba-Antele had sexually assaulted his niece and his girlfriend’s

children, the district court determined that an upward variance from the guidelines was

appropriate.


                                             -5-
       The court also noted the unchallenged portions of the PSR established that Mr.

Caiba-Antele had used several aliases and multiple social security numbers, which the

court interpreted as evidence that he was engaged in some sort of wrongful conduct. The

court highlighted that defendant had previously been convicted of one misdemeanor and

one felony immigration violation in New Mexico, as well as several traffic violations in

both Arizona and New Mexico, all additional evidence of his lack of respect for the law.

The court referred to the hypothetical guideline sentencing range of forty-six to fifty-

seven months had Mr. Caiba-Antele been convicted of the sex abuse charges, and then

sentenced Mr. Caiba-Antele to fifty-one months of imprisonment to be followed by a

three-year term of supervised release.

                                              II.

       “We review sentences for reasonableness under a deferential abuse of discretion

standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008) (citing Gall v.

United States, 552 U.S. 38 at 51 (2007)). Our review includes both procedural

reasonableness, which encompasses the manner in which a sentence was calculated, and

substantive reasonableness, which concerns the length of the sentence. United States v.

Smart, 518 F.3d 800, 803 (10th Cir. 2008). “A sentence is procedurally unreasonable if

the district court incorrectly calculates or fails to calculate the Guidelines sentence, treats

the Guidelines as mandatory, fails to consider the § 3553(a) factors, relies on clearly

erroneous facts, or inadequately explains the sentence.” Haley, 529 F.3d at 1311 (citing

Gall, 552 U.S. at 50-51). A sentence is substantively unreasonable if the length “is




                                              -6-
unreasonable given the totality of the circumstances in light of the 18 U.S.C. § 3553(a)

factors.” Id.

       Mr. Caiba-Antele contends the district court’s upwards variance from the

sentencing guidelines violated his Sixth Amendment rights because it was significantly

higher than the recommended range and was based on facts found by the judge rather

than on facts determined by a jury or admitted by the defendant. He concedes, however,

that this argument is foreclosed by binding precedent. Aplt. Br. at 12. See United States

v. Redcorn, 528 F.3d 727, 745 (10th Cir. 2008) (applying United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005), to deny similar Sixth Amendment challenge); see also

United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (uncharged conduct need

only be proved by a preponderance of the evidence for sentencing purposes). Because

“[w]e are bound by the precedent of prior panels absent en banc reconsideration or a

superceding contrary decision by the Supreme Court,” Mr. Caiba-Antele’s Sixth

Amendment claim must fail. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).

   Mr. Caiba-Antele also challenges the upward variance under the Due Process Clause,

claiming that the sentence was procedurally unreasonable because it was based on

evidence that lacked sufficient indicia of reliability. In sentencing, a district court may

rely on hearsay evidence as long as the evidence is sufficiently reliable. See Cook, 550

F.3d at 1296 & n.4; see also U.S.S.G. § 6A1.3(a) (sentencing court may consider any

relevant evidence “provided that the information has sufficient indicia of reliability to

support its probable accuracy.”). Defendant contends the testimony of the detectives and

the state prosecutor, in conjunction with the transcripts of the accusers’ interviews with


                                             -7-
the detectives, lacks reliability. He emphasizes the lack of physical evidence or other

corroboration that the sexual abuse occurred, apart from the testimony of the complaining

witnesses who were not subject to cross-examination. He also maintains the district court

erred by relying on law enforcement agents to determine the credibility of the

complaining witnesses.

       But the facts in Cook are similar to this case. There we upheld a sentencing

enhancement based on a district court finding that the defendant had more likely than not

committed felony menacing, a charge which had been brought against the defendant in

state court but was later withdrawn. Cook, 550 F.3d at 1294. The district court based its

finding on the following: an affidavit of one of the police officers who interviewed the

victims of the alleged menacing; the narrative remarks of another police officer

describing the events surrounding the defendant’s arrest from a police report, which was

based on a phone conversation with one of the complaining witnesses; and an Alcohol,

Tobacco and Firearms Report of Investigation, which also related the accusations of the

victims. Id. at 1295-96. We held in Cook that this evidence exhibited the necessary

indicia of reliability based on three factors. First, the officers “had the opportunity to

observe [the victims’] demeanor and form an opinion regarding their veracity.” Id. at

1297. Second, the complaining witnesses each corroborated the sequence of events that

had transpired. Id. And third, at a later date, one of the complaining witnesses retold the

same version of events to another police officer over the phone. Id.

   Our decision in United States v. Fennell, 65 F.3d 812 (10th Cir. 1995), is not to the

contrary. In determining the proper sentence for Mr. Fennell, who had pled guilty to


                                              -8-
possession of an automatic machine gun, the district court found by a preponderance of

the evidence that the defendant had fired his machine gun at his girlfriend, an act which

qualified him for a four-level enhancement under the sentencing guidelines. Id. at 813.

The only evidence the district court in Fennell considered regarding this alleged assault

was the presentence report and testimony from the probation officer who had prepared the

report. Id. Both the report and the officer’s testimony merely recounted statements made

to the officer by the defendant’s girlfriend during a phone interview. Id. We held that

this evidence lacked sufficient indicia of reliability because, unlike here, it was

uncorroborated and because the preparing officer “did not have an opportunity to observe

[the complaining witness’] demeanor during the interview and therefore could not form

any opinion as to her veracity.” Id.

       The evidence relied upon by the district court in the instant case manifests

sufficient indicia of reliability based on the factors we discussed in Cook, and which were

missing in Fennell. The detectives who testified regarding the sexual assault charges had

observed the victims first-hand and were able to form reasoned opinions regarding their

veracity. Like Cook, and unlike Fennell, the testimony of each victim here corroborated

the type and instances of abuse the other children said were perpetrated against them by

Mr. Caiba-Antele, and none of the victims changed their version of events or recanted

after the initial interviews were conducted. This case is thus closer to Cook than to

Fennell.

       In sum, we conclude the evidence relied upon by the district court to find that Mr.

Caiba-Antele had more likely than not committed the sexual assaults described in the


                                              -9-
PSR meets the standard of minimum indicia of reliability. Accordingly, the court did not

abuse its discretion in relying on that evidence to determine Mr. Caiba-Antele’s sentence.

      We AFFIRM.




                                           -10-
