                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 06 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50476

              Plaintiff - Appellee,              D.C. No. 3:08-cr-00723-H-1

  v.
                                                 MEMORANDUM *
GILBERTO TORRES-ORDONEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                     Argued and Submitted December 9, 2010
                              Pasadena, California

Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.

       Gilberto Torres-Ordonez (“Torres”) appeals his 65-month sentence for

unlawful reentry after deportation in violation of 8 U.S.C. § 1326. Torres argues,

first, that the documents used to prove that a 1992 robbery conviction pertained to

him, and thereby to make him eligible for a 16-level enhancement under U.S.S.G.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 2L1.2(b)(1)(A)(ii), were inadmissible under Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527 (2009). Torres maintains, second, that even if the enhancement

was properly applied, his sentence was substantively unreasonable. We affirm.

      1. We reject Torres’s first argument because the Confrontation Clause does

not apply to sentencing. United States v. Littlesun, 444 F.3d 1196, 1199-1200 (9th

Cir. 2006). Instead, evidence introduced at sentencing need only contain “minimal

indicia of reliability” to comport with due process. United States v. Horvath, 522

F.3d 904, 905-06 (9th Cir. 2008) (citation omitted). The evidence relied upon by

the district court to find that the 1992 robbery conviction was that of Torres meets

this standard. See United States v. Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir.

2009); United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998).

      2. It appears that the district court may have used a preponderance of the

evidence standard rather than a higher standard when it found the 1992 robbery

conviction was Torres’s and therefore supported a 16-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). As our precedents make clear, when a sentencing

factor has a “disproportionate effect” on a defendant’s sentence, it must be found

by clear and convincing evidence. See, e.g., United States v. Bonilla Montenegro,

331 F.3d 1047, 1050 (9th Cir. 2003); United States v. Jordan, 256 F.3d 922, 928

(2001). The enhancement here had such an effect on Torres’s sentence. See


                                          2
Bonilla Montenegro, 331 F.3d at 1050. But Torres failed to argue that the district

court used the wrong standard either to the district court or to this panel, and has

thus not even attempted to carry his burden of demonstrating that this error

affected his substantial rights, which is far from apparent. See United States v.

Marcus, 130 S. Ct. 2159, 2164-65 (2010). Accordingly, we decline to exercise our

discretion to correct any error. See United States v. Lyons, 472 F.3d 1055, 1071

(9th Cir. 2007).

      3. The district court did not abuse its discretion in sentencing Torres to a 65-

month term of imprisonment. United States v. Overton, 573 F.3d 679, 700 (9th

Cir. 2009). Significant factual differences render unavailing Torres’s argument

that his sentence is substantively unreasonable under United States v. Amezcua

Vasquez, 567 F.3d 1050 (9th Cir. 2009). First, Torres’s criminal history is

substantially more extensive than was that of Amezcua Vasquez. Second, Torres

has a prior conviction for illegal reentry and has been incarcerated for nine of the

fifteen years prior to his sentencing for the instant crime. Moreover, and unlike in

Amezcua Vasquez, the district court did take the age of Torres’s robbery conviction

into account by reducing Torres’s total offense level by three. Whether or not

Torres is right that a lower sentence is more appropriate, “[t]he fact that [we] might

reasonably [conclude] that a different sentence [is] appropriate is insufficient to


                                           3
justify reversal of the district court.” Amezcua Vasquez, 567 F.3d at 1055 (quoting

Gall v. United States, 552 U.S. 38, 51 (2007) (alterations in original)).

      Affirmed.




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