                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 04 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50055

               Plaintiff-Appellee,               D.C. No. 3:15-cr-02709-LAB

 v.
                                                 MEMORANDUM*
DAMASO ARELLANES-ZARATE,

               Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                          Submitted September 27, 2016**

Before:        TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      Damaso Arellanes-Zarate appeals from the district court’s judgment and

challenges the 18-month sentence imposed following his guilty-plea conviction for

improper entry by an alien, in violation of 8 U.S.C. § 1325. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Arellanes-Zarate contends that the district court erred by basing the sentence

on unreliable hearsay contained in the presentence report (“PSR”). Contrary to

Arellanes-Zarate’s claim, he did not object to the hearsay statements concerning

his prior convictions. Thus, the district court did not err by relying on the PSR’s

account of his criminal history at sentencing. See United States v. Ameline, 409

F.3d 1073, 1085 (9th Cir. 2005) (en banc) (“district court may rely on undisputed

statements in the PSR at sentencing”); see also United States v. Charlesworth, 217

F.3d 1155, 1160 (9th Cir. 2000) (district court may consider unobjected-to

statements contained in the PSR).

      Arellanes-Zarate also contends that the district court erred by failing to

provide notice under Federal Rule of Criminal Procedure 32(h) of its intent to vary

above the Guidelines range. As he concedes, this argument is foreclosed by

Irizarry v. United States, 553 U.S. 708 (2008).

      The government’s motion for judicial notice is denied.

      AFFIRMED.




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