United States v. Pablo Ayala-Yupit , 668 F. App'x 233 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50282
Plaintiff-Appellee, D.C. No.
3:14-cr-02057-BEN-1
v.
PABLO CRISTOBAL AYALA-YUPIT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted August 3, 2016**
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.
Pablo Ayala-Yupit appeals his conviction, following a bench trial, for felony
illegal entry in violation of 8 U.S.C. § 1325 and attempted illegal re-entry in
*
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).
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm in part and vacate in part.
I
Ayala contends that the government did not introduce sufficient evidence to
sustain his convictions.
The parties dispute whether a challenge to the sufficiency of the evidence
was preserved, but “plain-error review of a sufficiency-of-the-evidence claim is
only ‘theoretically more stringent’ than the standard for a preserved claim.”
United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (quoting United States v.
Cruz, 554 F.3d 840, 844 (9th Cir. 2009)). Review of Ayala’s claim is governed by
Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Flyer, 633 F.3d at 917.
II
A
Ayala first argues that the government failed to introduce sufficient evidence
to sustain the felony § 1325 conviction.
A “previous conviction for illegal entry is an element of the felony offense
of § 1325.” United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160 (9th Cir.
2004) (quoting United States v. Campos-Martinez, 976 F.2d 589, 591 (9th Cir.
1992)) (alterations omitted). “Absent proof of a former ‘conviction,’ the defendant
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should not be given a felony sentence.” Id. (quoting United States v.
Arambula-Alvarado, 677 F.2d 51, 52 (9th Cir. 1982)) (alterations omitted). Here,
the government admits that the “stipulated facts were poorly drafted” and “failed to
mention Ayala’s prior § 1325 conviction.” It does not, nor could it, argue that the
evidence was adequate to allow any rational trier of fact to find the essential
element of a former conviction under § 1325 on this record. See Flyer, 633 F.3d
at 917.
Instead, the government argues that “Ayala’s prior conviction is an objective
fact that was not, is not, and cannot be disputed,” and Ayala’s counsel stated his
expectation that there would be a finding of guilt. But “[w]hat matters in satisfying
the government’s burden of proof in a criminal case is not objective reality nor
defendant’s personal belief, but the evidence the government presents in court.”
United States v. Hernandez-Meza, 720 F.3d 760, 765 (9th Cir. 2013). Here, the
government clearly failed to meet its burden of proof with evidence presented in
court. As a result, Ayala’s felony conviction under § 1325 cannot stand.1
1
The government has not requested in its answering brief that we direct the
trial court to enter a judgment for a lesser-included offense of misdemeanor illegal
entry. See United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir. 1994).
Accordingly, any such request is waived.
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B
Ayala next argues that the government failed to introduce sufficient
evidence to sustain his § 1326 conviction.
Specifically, Ayala argues that the government failed to prove his specific
intent to enter the United States free from official restraint. See United States v.
Argueta-Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016) (applying United States v.
Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005)). The parties stipulated that
Ayala knew that he was entering the United States and entered voluntarily, that he
entered at a place other than a designated port of entry, and that he was found in
the United States approximately 5.4 miles east of a port of entry. Considering this
evidence in the light most favorable to the prosecution, such evidence is sufficient
for a rational trier of fact to find that Ayala had specific intent to remain free from
official restraint. See id. at 1161 (“When a person is spotted by border patrol
agents crossing into the United States, away from an official port of entry, this
alone is compelling evidence that the person intends to achieve not only physical
presence in the United States but also freedom from official restraint.”).
Accordingly, Ayala’s § 1326 conviction stands.
AFFIRMED IN PART, VACATED IN PART.
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