UNITED STATES OF AMERICA v. DAMASO ARELLANES ZARATE (2016)

MEMORANDUM*

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.

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.