Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the Southern District of California, Napoleon A. Jones, J., of two counts of bank robbery, and was sentenced after court enhanced base offense level under Sentencing Guidelines by two levels, based on express threats of death by defendant during course of robberies. The Court of Appeals, 217 F.3d 1204, vacated and remanded for resentencing. On remand, the District Court imposed 57-month sentence, and defendant appealed. The Court of Appeals held that: (1) district court complied with rule requiring it to resolve disputed issues; (2) upward adjustment was supported by hearsay statements of victim bank tellers; and (3) defendant was not entitled to evidentiary hearing on dispute as to whether threatening statements were attributable to defendant.
Affirmed.
Page 805.
Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding.
Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Subsequent to our remand for resentencing in accordance with Fed.R.Crim.P. 32(c)(1), William Kelvin Houston appeals his 57-month sentence following a guilty plea to two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Houston first contends that the district court, on remand for resentencing, did not comply with Fed.R.Crim.P. 32(c)(1) because it failed to resolve the dispute as to whether Houston made threats of death to the victim tellers. We review de novo the district court's compliance with Fed.R.Crim.P. 32, United States v. Standard, 207 F.3d 1136, 1140 (9th Cir.2000). Our review of the record reveals that the district court stated that it had determined by a preponderance of the evidence that the statements were attributable to Houston, and that they were indeed intended as threats. The district court therefore properly complied with Rule 32(c)(1).
Houston next contends the district court erred by concluding that the hearsay statements of the victim bank tellers were insufficient to satisfy the government's burden of proof by a preponderance of the evidence. We are not persuaded.
Hearsay evidence is admissible at sentencing as long as it is accompanied by "some minimal indicia of reliability." United States v. Huckins, 53 F.3d 276, 279 (9th Cir.1995). The district court, here, relied upon the hearsay statements of the two victim bank tellers, which though at odds with the defendant's version of events, were remarkably similar and corroborated each other. Because the only evidence in opposition to the tellers' version of events was the defendant's own statement, the district court properly determined that sufficient evidence was introduced to support the application of the upward adjustment. See United States v. Berry, 258 F.3d 971, 977 (9th Cir.2001).
Finally, Houston contends that the district court erred by resolving the dispute as to whether the threatening statements were attributable to him without an evidentiary hearing. Here too, we find Houston's contention unpersuasive.
We previously determined that Houston was not entitled to an evidentiary hearing. See United States v. Houston, 217 F.3d 1204, 1209 (9th Cir.2000); see also United States v. Stein, 127 F.3d 777, 780-81 (stating that "[w]here the district court allows the defendant to 'rebut the recommendations and allegations of the presentence report either orally or through the submission of written affidavits or briefs,' Rule 32 does not require an evidentiary hearing.") (quoting United States v. Sarno, 73 F.3d 1470, 1502-03 (9th Cir.1995)). Because Houston has not now shown any change in circumstance sufficient to warrant a revision of our previous decision, the district court properly declined to conduct an evidentiary hearing.
AFFIRMED.