United States v. Mario Carrasco-Chairez , 371 F. App'x 721 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 09-10197 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. CR 05-02021-DCB-
BPV-1
v.
MARIO CARRASCO-CHAIREZ, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted March 10, 2010
San Francisco, California
Before: FERNANDEZ, GRABER, and McKEOWN, Circuit Judges.
Defendant Mario Carrasco-Chairez appeals his conviction for illegal reentry
in violation of 8 U.S.C. § 1326. For the following reasons, we affirm.
1. Reviewing de novo, United States v. Mosley, 465 F.3d 412, 414-15 (9th
Cir. 2006), we hold that sufficient evidence supported the conviction. A
reasonable juror could have concluded that Defendant was free from official
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
restraint in the approximately thirteen-minute period between his entry into the
country and his interview with the testifying government agent. See United States
v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005) (reaching the same
conclusion on similar facts).
2. As Defendant’s lawyer conceded at oral argument, Defendant did not
challenge, on appeal, the district court’s refusal to give a jury instruction on official
restraint. We therefore deem that issue waived. See Singh v. Ashcroft, 361 F.3d
1152, 1157 n.3 (9th Cir. 2004) ("Issues not raised in an appellant’s opening brief
are typically deemed waived.").
3. We decline to reach the ineffective assistance of counsel claim raised in
Defendant’s opening brief. See United States v. Daychild, 357 F.3d 1082, 1094-95
(9th Cir. 2004) (holding that ineffective assistance of counsel claims ordinarily are
not reviewed on direct appeal).
4. Reviewing de novo, United States v. Proa-Tovar, 975 F.2d 592, 594 (9th
Cir. 1992) (en banc), we hold that the district court properly denied Defendant’s
collateral attack on the 2005 deportation order. Defendant cannot establish
prejudice from the expedited procedure. See id. at 595 (holding that a defendant
must establish prejudice to prevail in a collateral challenge to a removal order).
AFFIRMED.
2
FILED
United States v. Carrasco-Chairez, No. 09-10197 MAR 15 2010
MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, concurring: U.S. COURT OF APPEALS
I concur in full in the memorandum disposition. I write separately to state
my view that, had Defendant raised the jury instruction issue on appeal, I would
vacate the conviction and remand. Our decision on this point in United States v.
Bello-Bahena, 411 F.3d 1083, 1088-91 (9th Cir. 2005), controls.