July 18, 2019

Tenth Circuit: Upward Departure From Sentencing Guidelines Not Abuse of Discretion When Evidence Relied On Met Minimum Indicia of Reliability

The opinion in United States v. Caiba-Antele was originally filed as unpublished December 7, 2012. On January 23, 2013, the Tenth Circuit sua sponte directed that it be published and reissued nunc pro tunc to the original filing date.

Jose Caiba-Antele pled guilty to reentry of a removed alien, in violation of 8 U.S.C. § 1326. He appealed the district court’s imposition of a variant sentence of 51 months. He originally had pled guilty pursuant to a plea agreement but the district court judge rejected the agreement because it did not reflect charges brought against the defendant by the State 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. Caiba-Antele was not convicted of these charges; the case was dropped because one of the victims refused to testify and the psychological damage to another from testifying would have been too great. The district court held a hearing where detectives who had interviewed the victims testified that they found the victims credible based on their observations and experience.

If the defendant had been convicted of the state charges, his guidelines sentencing range on the reentry charge would have been 46 to 57 months, versus the 8 to 14 months without those convictions. The district court found it more likely than not the defendant had committed the sexual assaults and considered that, along with other factors, in making the upward departure from the sentencing guidelines.

The defendant made a Due Process Clause challenge, 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. The Tenth Circuit found the evidence the court relied on did meet the standard of minimum indicia of reliability. The detectives observed the victims first-hand, the testimony of the victims corroborated each other and none of the victims changed their version of events or recanted after the initial interviews were conducted. The court affirmed the sentence.

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