United States v. Jose Ignacio Moralez Abad

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 12, 2019
• Docket: 19-11299
• Status: Unpublished

Opinion

Case: 19-11299 Date Filed: 12/12/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-11299 Non-Argument Calendar ________________________

D.C. Docket No. 8:18-cr-00533-RAL-JSS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE IGNACIO MORALEZ ABAD,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(December 12, 2019)

Before WILLIAM PRYOR, JORDAN and NEWSOM, Circuit Judges.

PER CURIAM: Case: 19-11299 Date Filed: 12/12/2019 Page: 2 of 3

Jose Moralez Abad appeals his sentence of 21 months of imprisonment for

illegally reentering the United States following deportation for a felony offense. 8

U.S.C. § 1326(a), (b)(1). Abad argues that the district court imposed an

unreasonable sentence and violated his right to due process by crediting unreliable

hearsay in his presentence investigation report about his prior conviction for

unlawful sexual contact with a minor. He argues that the district court erred by

relying on a summary of a police officer’s “sworn affidavit” that recounted the

victim’s version of events. But the record makes clear that the district court did not

consider the disputed facts about Abad’s prior conviction in determining his

sentence. We affirm.

We review the reasonableness of a sentence for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51 (2007). To determine whether a sentence is

procedurally reasonable, we review legal issues de novo and related factual

findings for clear error. United States v. Arguedas, 86 F.3d 1054, 1059 (11th Cir.

1996). The district court may consider hearsay during a sentencing hearing so long

as the evidence has sufficient indicia of reliability and the defendant is given the

opportunity to rebut the evidence. United States v. Ghertler, 605 F.3d 1256, 1269

(11th Cir. 2010). A district court does not violate a defendant’s right to due process

by relying on hearsay evidence unless it is materially false or unreliable and it

served as the basis for the defendant’s sentence. Id. The defendant “bears the

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burden of showing that the court explicitly relied on the information.” Id. (internal

citation and quotation marks omitted).

Abad’s sentence is procedurally reasonable. Contrary to Abad’s argument,

the district court relied only on “the undisputed factual statements” in his

presentence report and not on the disputed summary. See Gall, 552 U.S. at 51. The

district court was “troubl[ed]” by Abad’s nine prior convictions for “no valid

driver’s license [ or] driving on [a] suspended license,” the most recent of which

resulted in his conviction for reentering the United States illegally. Although the

district court mentioned Abad’s prior conviction for unlawful sexual activity, it did

so in conjunction with other prior convictions to highlight the extent of his criminal

history and never alluded to the disputed facts underlying the conviction. So the

district court did not abuse its discretion. Nor did it violate Abad’s right to due

process.

We AFFIRM Abad’s sentence.