United States v. Oro-Barahona

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-31152
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADORE ORO-BARAHONA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
New Orleans Division
(96-CR-184-J)
_________________________________________________________________
July 31, 1997
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:1
Salvadore Oswaldo Oro-Barahona was convicted after a jury
trial of being a previously arrested and deported alien found in
the United States without consent of the Attorney General. See 8
U.S.C. § 1326(a). On appeal, he challenges the sufficiency of
the evidence to establish that he was previously deported and
1
Pursuant to 5TH CIR. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
that he is an alien. Finding sufficient evidence on both
elements, we affirm.
Immigration and Naturalization Service (INS) agents
George Lund and Michael Meskill testified that they arrested Oro-
Barahona on June 19, 1996, after receiving an anonymous tip that
he was living in the United States illegally. Agent Lund
testified that he had previously arrested Oro-Barahona in 1990
for being a citizen of Honduras in the United States illegally.
A warrant of deportation for Oro-Barahona was signed on
behalf of the INS District Director in New Orleans on June 6,
1995. INS officer Robert Smith executed the warrant on October
26, 1995 by observing Oro-Barahona board a flight to Honduras.
Glenn Burmaster, a New Orleans Police Department fingerprint
examiner, testified that Oro-Barahona’s thumbprint appears on the
warrant, on a fingerprint card showing that Oro-Barahona was
arrested on July 24, 1990, and on a fingerprint card showing his
arrest on June 19, 1996. Oro-Barahona’s signature appears on the
June 19, 1996 fingerprint card, and that card lists his place of
birth as Honduras. The government also introduced evidence that
Oro-Barahona had not received permission from the attorney
general to return to the United States.
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Oro-Barahona argues that the evidence is insufficient to
establish that he had been previously deported. Oro-Barahona
moved for judgment of acquittal based on this argument, thus we
review the evidence to see if any rational trier of fact could
have found the element of the crime beyond a reasonable doubt.
United States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir.
1995). Oro-Barahona argues that the evidence of deportation is
insufficient because the warrant for deportation is signed by an
unidentified individual. We disagree. INS Agent Stephen
Lindgren testified that the warrant was signed on behalf of the
district director by an authorized INS agent. INS officer Smith
testified that he executed the warrant by observing Oro-Barahona
board a plane for Honduras. This is ample evidence for a
rational jury to decide that Oro-Barahona had previously been
deported.
Oro-Barahona also argues that the government did not
present sufficient evidence to establish that he is an alien. He
argues that the only evidence supporting his alien status was the
warrant of deportation and unsupported statements by the
officers. Oro-Barahona cites a line of cases in the Ninth
Circuit holding that a warrant of deportation is insufficient
evidence, standing alone, to support a conviction under §
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1326(a). See United States v. Meza-Soria, 935 F.2d 166, 169 (9th
Cir. 1991); United States v. Ortiz-Lopez, 24 F.3d 53, 55 (9th
Cir. 1994).
Oro-Barahona did not raise a sufficiency challenge to the
alien element below, and admits that the applicable standard of
review is plain error. Plain error requires that 1) there is
error, 2) which is clear or obvious, 3) which affected
substantial rights, and 4) which will seriously affect the
fairness, integrity or public reputation of judicial proceedings
if allowed to stand. United States v. Calverley, 37 F.3d 160, 162
(5th Cir.1994) (en banc), cert. denied, ___ U.S. ___, 115 S. Ct.
1266 (1995). We find no plain error here. In this case, unlike
the Ninth Circuit cases, more than just the deportation order
tended to prove Oro-Barahona’s status as an alien. Two
fingerprint cards indicate that his place of birth or citizenship
is Honduras, and one card includes Oro-Barahona’s signature. INS
officers testified that he was an alien previously arrested for
unlawfully being in the United States. An INS officer also
testified that he executed the warrant of deportation and
witnessed Oro-Barahona depart for Honduras. The warrant of
deportation recites when and where Oro-Barahona entered the
United States. Oro-Barahona’s prior deportation, combined with
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the other evidence indicating that he was not a U.S. citizen,
could lead a rational jury could conclude that Oro-Barahona was
an alien.
AFFIRMED.
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