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NOT FOR PUBLICATION OCT 04 2016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.
2 16-50055