United States v. Luna-Bolanos

FILED
United States Court of Appeals
Tenth Circuit
March 23, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-1207
(D.C. No. 1:08-CR-00510-CMA-1)
ERNESTO LUNA-BOLANOS, a/k/a (D. Colo.)
Ernesto Reyes Luna,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
A jury found defendant-appellant Ernesto Luna-Bolanos guilty of one count
of illegal reentry by a previously deported alien, in violation of 8 U.S.C.
§ 1326(a) and (b)(1). He appeals his conviction on the ground that the
government’s evidence was insufficient to prove an element of the offense: the
lack of express consent to reapply for admission to the United States. See id. at
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
§ 1326(a)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that
the jury’s verdict was supported by sufficient evidence and AFFIRM the district
court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
Mr. Luna-Bolanos was removed from the United States in September 2005
and told he was forbidden to return without consent from the Attorney General to
apply for permission to reenter. Nevertheless, Immigrations and Customs
Enforcement (ICE), a division of the Department of Homeland Security (DHS),
found him in the United States in 2008 and took him into custody. At the time, he
possessed a Colorado driver’s license in the name of Ernesto Luna-Tena and
signed his name as Ernesto Luna.
Under the name of Ernesto Luna-Bolanos, defendant was indicted on one
count of being an alien who re-entered the United States after being deported or
removed, subsequent to his 1994 California felony conviction for possession of a
controlled substance. See 8 U.S.C. § 1326(a), (b)(1). After the ensuing jury trial,
he was found guilty and sentenced to 17 months’ imprisonment. He now appeals
his conviction.
II. DISCUSSION
To establish the charged offense, the government was required to prove that
(1) Mr. Luna-Bolanos is an alien; (2) who was convicted of a felony and later
deported; (3) who was thereafter found in the United States; and (4) who did not
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have the appropriate consent from the Attorney General or his successor, the
Secretary of Homeland Security, to reapply for admission into the United States.
See 8 U.S.C. § 1326(a), (b)(1); United States v. Martinez-Morel, 118 F.3d 710,
712-13 (10th Cir. 1997). 1 On appeal, Mr. Luna-Bolanos implicitly concedes the
first three elements, and challenges only the sufficiency of the evidence on the
fourth--the consent element. He asserts that the government failed to conduct an
adequate record search under all of his aliases, thus failing to demonstrate that he
lacked permission to re-apply for admission.
“We review sufficiency of the evidence de novo . . . . view[ing] the
evidence in the light most favorable to the government” and “asking whether any
rational trier of fact could have found the defendant guilty of the crime beyond a
reasonable doubt.” United States v. Parker, 553 F.3d 1309, 1316 (10th Cir. 2009)
(quotations and alteration omitted). “We will only overturn a guilty verdict on
sufficiency grounds if no reasonable juror could have reached such a verdict on
the evidence presented.” Id.Several government witnesses testified on the lack-of-permission element.
Javier Gutierrez, an ICE Immigration Enforcement Agent, detailed the
administrative processing of Mr. Luna-Bolanos after he had been found in the
1
The unpublished case of United States v. Rios-Zamora, 153 F. App’x. 517,
520-21 (10th Cir. 2005), explains the roles of Attorney General and Secretary of
Homeland Security regarding consent for re-application after the 2003 transfer of
authority from the Immigration and Naturalization Service to the DHS.
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United States. Mr. Luna-Bolanos was identified with his alien number and his
birthdate. In the initial stage of processing, Mr. Luna-Bolanos told Mr. Gutierrez
that his true and correct name was Ernesto Luna-Bolanos. Defendant also
admitted that he was in the United States illegally, that he had never been
admitted to the United States as a legal permanent resident, and that he did not
have consent to re-enter the United States.
Barbara Koenigsberg, the acting records manager for the Denver field
office of DHS’s Citizenship and Immigration Services, stated that the agency
“run[s] into alias situations quite often, where people will use different names on
their documentation” so the agency routinely uses different portions of an alien’s
name, date of birth, or parents’ information. R., Vol. 2 at 261. Ms. Koenigsberg
searched three different computer systems to determine whether
Mr. Luna-Bolanos or an individual with his date of birth obtained consent to
reapply for admission into the United States. She determined that he had never
received the requisite consent. As a result, she prepared a Certificate of
Nonexistence of Record, which stated that no record was found of any application
for permission to reenter made by Ernesto Luna-Bolanos or an individual with his
alien number or date of birth.
Additionally, ICE Officer Trenton Blatt, the deportation officer involved in
the criminal investigation, re-searched the databases checked by
Ms. Koenigsberg. He stated that he found no record indicating that
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Mr. Luna-Bolanos had asked for or received permission to reenter the United
States under his own name or the name of Ernesto Luna-Tena.
Given Mr. Luna-Bolanos’s admissions, coupled with searches conducted by
Ms. Koenigsberg and Officer Blatt, the government’s evidence was sufficient for
the jury to find beyond a reasonable doubt that defendant had not obtained
express consent to reapply for admission to the United States after his
deportation. See United States v. Martus, 138 F.3d 95, 97 (2d Cir. 1998)
(Certificate of Nonexistence of Record and defendant’s acknowledgment that he
had not received permission established nonexistence of express consent). See
also United States v. Scantleberry-Frank, 158 F.3d 612, 617 (1st Cir. 1998)
(Government’s thorough record search demonstrated that defendant had not
sought permission to reenter country under any of his aliases).
Mr. Luna-Bolanos’s arguments concerning his use of the name Ernesto Luna, the
existence of two different alien files, and the government’s “last-minute” review
of one computer database, Aplt. Br. at 8, involve the weight of the evidence. On
appeal, “we do not weigh conflicting evidence or consider witness credibility, as
that duty is delegated exclusively to the jury.” Parker, 553 F.3d at 1316.
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III. CONCLUSION
For the reasons stated above, this court concludes there was sufficient
evidence to support Mr. Luna-Bolanos’s conviction and AFFIRMS.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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