                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50144

              Plaintiff - Appellee,              D.C. No. 3:12-cr-04360-LAB-1

  v.
                                                 MEMORANDUM*
JOSE EDGAR AMPARO-PALOMARES,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-50158

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00929-BEN-1

  v.

JOSE EDGAR AMPARO-PALOMARES,

              Defendant - Appellant.


                    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

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.

                                            2
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).


                                            3
      (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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