United States v. Jorge Aguero-Carlos

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10503
Plaintiff-Appellee, D.C. No.
4:13-cr-01824-CKJ-BGM-1
v.
JORGE LUIS AGUERO-CARLOS, AKA MEMORANDUM*
Jorge Rosas-Ayueros,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted December 13, 2016**
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.
*
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).
***
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
After representing himself at trial, Jorge Luis Aguero-Carlos was convicted
of illegal reentry in violation of 8 U.S.C. § 1326(a). On appeal, Aguero challenges
the validity of his waiver of the right to counsel and the district court’s excusing a
potential juror for cause. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Aguero argues that his waiver of counsel was invalid because the
magistrate judge conducting the Faretta colloquy failed to explain adequately the
sentence enhancement sought in the indictment under 8 U.S.C. § 1326(b)(1). The
record, however, supports the magistrate judge’s determination that Aguero was
informed of, and understood the charges against him, including the enhancement.
The judge did not err in concluding that Aguero’s waiver of the right to counsel was
knowing and voluntary. See United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir.
2004).
2. Aguero also argues that it was an abuse of discretion for the trial court to
remove a potential juror for cause. But Aguero does not challenge the impartiality
of the jury that was ultimately impaneled. See United States v. Padilla-Mendoza,
157 F.3d 730, 733–34 (9th Cir. 1998) (“The core question here is whether
defendant’s constitutional right to an impartial jury has been violated.”). Moreover,
because the juror twice stated that he would find it difficult to be fair, the trial court
did not abuse its discretion in dismissing him. See Merced v. McGrath, 426 F.3d
1076, 1081–82 (9th Cir. 2005).
2
AFFIRMED.
3