FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 7, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-2140
v. (D.C. No. 2:10-CR-02316-WJ-1)
(D. New Mexico)
JOSE CAIBA-ANTELE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, SEYMOUR, and O’BRIEN, Circuit Judges.
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.
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
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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. 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
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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. 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
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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 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,
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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.
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
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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.
“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 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.
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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 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
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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
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pled guilty to 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.
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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 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.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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