United States v. Victor Canedo-Reyna , 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NOT FOR PUBLICATION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. 09-10196 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 4:08-CR-00040-FRZ-
CRP-1
v.
VICTOR MANUEL CANEDO-REYNA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted March 10, 2010
San Francisco, California
Before: FERNANDEZ, GRABER, and McKEOWN, Circuit Judges.
Defendant Victor Canedo-Reyna 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. 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 1985 deportation order. The court correctly held that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant had not exhausted his administrative remedies. See 8 U.S.C.
§ 1326(d)(1) (requiring exhaustion of administrative remedies). As the
government concedes, Defendant could still file a motion to reopen, but he has not
done so.
2. 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
restraint in the five-day period between his entry into the country and his
interview, many miles from the border, 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).
AFFIRMED.
2