United States v. Pulido-Lopez ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40506
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE PULIDO-LOPEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-95-280-01)
January 3, 1997
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
Jorge Pulido-Lopez appeals his conviction for re-entry into
the United States after deportation in violation of 8 U.S.C. §
1326. He concedes that he was arrested and deported, that he re-
entered the United States, and that he did not obtain the Attorney
General’s permission to re-enter. His only argument is that the
government did not present substantial evidence at his bench trial
to prove that he is an alien as required by the statute. Mr.
Pulido-Lopez urges us to embrace the Ninth Circuit’s rule that
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
warrants of deportation are by themselves insufficient to prove
alienage in criminal trials. United States v. Ortiz-Lopez, 24 F.3d
53, 55-56 (9th Cir. 1994). See also United States v. Meza-Soria,
935 F.2d 166, 169 (9th Cir. 1991) (“Th[e] difference in burdens of
proof alone should demonstrate that it would be quite improper to
establish the alienage element of the reentry offense through the
use of factual findings in the deportation hearing.”).
Because the trial court relied on more than the warrant of
deportation to support its finding of alienage, we need not decide
whether to approve of the Ortiz-Lopez rule. The second thumbprint,
which matched Mr. Pulido-Lopez’s thumbprint on the order for
deportation, identified him as a resident of Guadalajara, Mexico.
The court was entitled to believe the government’s testimony that
this information came either directly from Mr. Pulido-Lopez himself
or from yet another form, an I-213 record of deportable alien, that
a colleague filled out while interviewing Mr. Pulido-Lopez.
Furthermore, the certificate of nonexistence of record issued by
the Immigration and Naturalization Service stated that Mr. Pulido-
Lopez was born in Mexico.
The documentary evidence of Mr. Pulido-Lopez’s alienage was
substantial. We need not decide whether a conviction can rest on
evidence of alienage drawn exclusively from a warrant of
deportation. See United States v. Contreras, 63 F.3d 852, 858 (9th
Cir. 1995) (holding that the defendant’s admission of alienage at
a deportation hearing and the testimony of a government agent as to
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alienage were sufficient to support a conviction under 8 U.S.C. §
1326).
AFFIRMED.
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