                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 05 2013

                                                                        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. 12-50070

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00659-PA-1

  v.
                                                 MEMORANDUM *
EDGAR EDUARDO TOLEDO-REYES,
AKA Edgar Torlado-Reyes,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                      Argued and Submitted February 7, 2013

                                Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

       Appellant Toledo-Reyes appeals his sentence for violation of 8 U.S.C. §

1327. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291

and we affirm. We review “the district court’s application of the Sentencing



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Guidelines to the facts of this case for abuse of discretion, and the district court’s

factual findings for clear error.” United States v. Kimbrew, 406 F.3d 1149, 1151

(9th Cir. 2005) (internal citation omitted). We review the district court’s

evaluation of the reliability of evidence used at sentencing for abuse of discretion.

United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001).

      The district court did not abuse its discretion in finding the evidence

presented was sufficiently reliable to support application of a two-level sentence

enhancement for causing bodily injury, U.S.S.G. § 2L1.1(b)(7)(A), and a two-level

sentence enhancement for intentional or reckless creation of a substantial risk of

death or serious bodily injury, U.S.S.G. § 2L1.1(b)(6). The sentencing court may

rely on hearsay statements and other evidence not permitted at trial. United States

v. Petty, 982 F.2d 1365, 1367 (9th Cir. 1993). However, to avoid any due process

violation, the evidence must contain minimal indicia of reliability. Id. at 1369.

The sentencing court relied on the following: the hearsay statements of four

smuggled aliens, the medical treatment of three witness-participants, and the

observations of the arresting border patrol officers. Here, the smuggled aliens’

statements corroborate each other and are consistent with the medical evidence and

the observations of the border patrol officers. Berry, 258 F.3d at 976-77.




                                            2
      Given the reliability of the evidence, there was sufficient evidence to sustain

the enhancements. At sentencing, a defendant is responsible for “all harm that

resulted from” all “reasonably foreseeable acts and omissions of others in

furtherance of [a] jointly undertaken criminal activity[] that occurred during the

commission of the offense of conviction. . . .” U.S.S.G. § 1B1.3(a)(1)(B), (a)(3);

see also United States v. Miguel, 368 F.3d 1150, 1155-56 (9th Cir. 2004). Because

three passengers were injured during the commission of the offense of conviction,

the district court did not abuse its discretion in applying the two-level enhancement

pursuant to U.S.S.G. § 2L1.1(b)(7)(A).

      The boat traveled from Mexico to the United States at night over rough seas,

which alone caused the injuries of one passenger. There were insufficient life

vests, and the passenger without a life vest stated that she was afraid she would

drown when the boat capsized. Moreover, the boat actually capsized when it

neared the shore, and at least one passenger was trapped temporarily underneath it,

fearing for his life. We hold that the district court did not abuse its discretion in

applying a two-level enhancement pursuant to U.S.S.G. § 2L1.1(b)(6). See also

United States v. Hernandez-Guardado, 228 F.3d 1017, 1027-28 (9th Cir. 2000).




      AFFIRMED.


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