United States v. Jorge Mariscal

FILED
NOT FOR PUBLICATION AUG 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50349
Plaintiff - Appellee, D.C. No. 3:11-cr-02838-LAB-1
v.
MEMORANDUM *
JORGE MARISCAL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted August 6, 2012 **
Pasadena, California
Before: REINHARDT, SILVERMAN, and NGUYEN, Circuit Judges.
Following a bench trial, Appellant Jorge Mariscal (“Mariscal”) was
convicted of violating 8 U.S.C. § 1326(a), which prohibits an alien from illegally
reentering the United States after he previously left the country while an order of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal was outstanding. On appeal, Mariscal argues that the government failed
to sufficiently prove his prior physical departure.
Where a party on appeal challenges the sufficiency of the evidence, we view
the evidence “in the light most favorable to the prosecution,” and then determine
whether “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Carranza, 289 F.3d 634,
641–42 (9th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Appellant relies heavily on United States v. Arias-Ordonez, 597 F.3d 972,
978 (9th Cir. 2009), where we held that if the government seeks to rely on a notice
of reinstatement to remove an alien, the defendant must have an opportunity to
challenge the underlying order of removal. Here, however, Mariscal does not
dispute the validity of the underlying 2007 Order of Removal. Therefore, we need
not determine whether the 2010 Notice of Reinstatement was valid.
Similarly, Mariscal does not dispute the validity of the 2010 Warrant of
Removal, dated September 8, 2010, which contains Mariscal’s fingerprints and the
sworn statement of an immigration officer stating that he removed Mariscal to
Mexico “on foot” that day. Therefore, the district court properly found that the
government sufficiently proved Mariscal’s physical departure beyond a reasonable
doubt. See United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006)
2
(warrant of removal “sufficient alone to support a finding of removal beyond a
reasonable doubt”) (emphasis added) (citing United States v. Bahena-Cardenas,
411 F.3d 1067, 1075 (9th Cir. 2005) (warrant of removal “provided sufficient
evidence of physical removal”)).
AFFIRMED.
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