United States v. Lopez-Martinez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 16, 2009
No. 08-11215
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VALENTIN LOPEZ-MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:02-CR-11-ALL
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Valentin Lopez-Martinez (Lopez) appeals the revocation of his term of
supervised release on grounds that he illegally reentered the United States. He
asserts that the Government failed to prove by a preponderance of the evidence
that the Attorney General did not consent to his reentry.
The probation officer testified without objection from the defense that
Lopez violated conditions of his supervised release by returning to the United
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-11215
States illegally following his removal in 2007. The evidence also included
Department of Homeland Security records for Lopez dated one week before the
revocation hearing. The records contained no indication that he had received the
Attorney General’s consent to return. Although Lopez speculates generally that
the records may have been inaccurate or incomplete, and he complains that the
sponsoring witness lacked personal knowledge of them, he points to nothing
specific about the records indicating that they were unreliable. The district
court did not err by admitting them. See United States v. Grandlund, 71 F.3d
507, 509 (5th Cir. 1995); United States v. Ayers, 946 F.2d 1127, 1129–30 (5th Cir.
1991).
The record also shows that Lopez has a significant criminal history that
includes convictions for burglary and possession of a controlled substance. The
Attorney General would not have granted a waiver of inadmissibility in the
absence of “extraordinary circumstances” or a showing that a denial “would
result in exceptional and extremely unusual hardship.” 8 C.F.R. § 212.7(d); see,
e.g., Perez Pimentel v. Mukasey, 530 F.3d 321, 323–24 (5th Cir. 2008). Lopez
stated that he returned to the United States because he was “mentally
manipulated” in Mexico and because he wanted to see his ex-wife “to talk about
a house” they had purchased. He did not indicate anything that would have
justified a waiver of inadmissibility from the Attorney General.
When the record is viewed as a whole and in the light most favorable to
the Government, the finding was plausible that the Attorney General did not
consent to Lopez’s return to the United States. Accordingly, the district court
did not clearly err in making the finding, see United States v. Alaniz-Alaniz, 38
F.3d 788, 790 n.3, 792 (5th Cir. 1994), and we find no abuse of its discretion in
the revocation of Lopez’s term of supervised release. See United States v.
McCormick, 54 F.3d 214, 219 & n.3 (5th Cir. 1995).
AFFIRMED.
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