United States v. Artemio Gonzalez-Andrade ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 11 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50495
Plaintiff-Appellee, D.C. No. 3:14-cr-01494-AJB
v.
MEMORANDUM*
ARTEMIO GONZALEZ-ANDRADE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Artemio Gonzalez-Andrade appeals from the district court’s judgment and
challenges his jury-trial conviction for attempted reentry of a removed alien, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Gonzalez-Andrade contends that the district court erred in failing to give a
voluntary intoxication instruction sua sponte. As Gonzalez-Andrade
acknowledges, we review this claim for plain error. See United States v. Bear,
439 F.3d 565, 568 (9th Cir. 2006). Because the trial transcript does not reflect an
evidentiary basis to conclude that Gonzalez-Andrade was intoxicated, much less
sufficiently intoxicated as to be unable to form the specific intent to enter the
United States, the district court did not plainly err in failing to give the instruction.
See United States v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000); see also United
States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987) (district court did not err
in failing to instruct on voluntary intoxication when testimony established that
defendant’s behavior during the offense was inconsistent with intoxication).
AFFIRMED.
2 15-50495