United States v. Alvaro Sanchez-Aguilar

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2022
• Docket: 21-50090
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50090

Plaintiff-Appellee, D.C. No. 3:19-cr-02022-GPC-1

v.

ALVARO SANCHEZ-AGUILAR, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted May 17, 2022 Pasadena, California

Before: MILLER and COLLINS, Circuit Judges, and KORMAN,** District Judge.

Alvaro Sanchez-Aguilar (“Sanchez”) appeals his convictions for making a

false statement to a federal officer, in violation of 18 U.S.C. § 1001(a)(1), and

attempted reentry by a removed alien, in violation of 8 U.S.C. § 1326. Sanchez is a

citizen of Mexico who had been deported to Mexico seven times before this case.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Each time before his most recent attempt to cross the border, he jumped over the

border fence. This prosecution arose out of his latest attempt to cross the border

when he tried to walk through a port of entry, claiming that he was a naturalized U.S.

citizen. Sanchez had not obtained prior permission from the Attorney General

permitting him to enter the country. After a bench trial, the district judge found

Sanchez guilty of both counts and sentenced him to time served.

1. Sanchez argues that the evidence was insufficient to support his convictions

for either offense. To establish the false statement charge, the prosecution had to

prove that Sanchez “knowingly and willfully . . . ma[de] a[] materially false,

fictitious, or fraudulent statement or representation to a federal official.” United

States v. Charley, 1 F.4th 637, 643 (9th Cir. 2021) (internal quotation marks and

citation omitted). To establish attempted illegal reentry, the prosecution had to prove

that Sanchez “had the purpose, i.e., conscious desire, to reenter the United States

without the express consent of the Attorney General.” United States v. Gracidas-

Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc). At trial, Sanchez defended

against both charges by claiming that he believed that he was a U.S. citizen when he

attempted to reenter the country. See United States v. Smith-Baltiher, 424 F.3d 913,

923–25 (9th Cir. 2005). The district court, however, did not believe Sanchez, and

we “cannot second-guess the [fact-finder’s] credibility assessments; rather, ‘under

Jackson [v. Virginia, 443 U.S. 307 (1979)], the assessment of the credibility of

2 witnesses is generally beyond the scope of review.’” United States v. Nevils, 598

F.3d 1158, 1170 (9th Cir. 2010) (quoting Schlup v. Delo, 513 U.S. 298, 330 (1995)).

There was ample evidence to support the finding that Sanchez did not honestly

believe he was a U.S. citizen when he attempted to reenter the United States in 2019,

and it follows from this finding that there was sufficient evidence that he also knew

that he needed but did not have the consent of the Attorney General.

On appeal, Sanchez argues that the district court erred by considering, as part

of its credibility analysis, whether it would have been reasonable for Sanchez to

believe that he was U.S. citizen. But the reasonableness of Sanchez’s purported

belief that he was a U.S. citizen was relevant to assessing Sanchez’s credibility and

determining whether he did in fact honestly hold such a belief. Indeed, “juries are

routinely instructed to consider . . . the reasonableness of the witness’ testimony in

light of all the evidence.” Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co.,

206 F.3d 900, 912 (9th Cir. 2000) (quotation marks and citation omitted).

2. Sanchez did not argue below that the prosecution and district judge

erroneously shifted the burden of proof to him, so our review of this claim is only

for plain error. See United States v. Vaandering, 50 F.3d 696, 701 (9th Cir. 1995).

There was no error, plain or otherwise. The prosecutor merely argued that the

government had met its burden of proving specific intent and that Sanchez’s

testimony to the contrary was not credible. See United States v. Tucker, 641 F.3d

3 1110, 1120–22 (9th Cir. 2011). Highlighting weaknesses in the defense does not

shift the burden of proof, particularly when, as here, the prosecutor “reiterates that

the burden of proof is on the government.” Vaandering, 50 F.3d at 701–02.

As for whether the district court misplaced the burden of proof, the colloquy

Sanchez points to between the court and the prosecutor about the evidence was

“nothing more than the district court (in its capacity as trier of fact) reflecting to

counsel” its thoughts on the evidence. United States v. Brobst, 558 F.3d 982, 1000

(9th Cir. 2009). And while the district court referred to the defendant’s claimed

mistake about his citizenship as a “defense” that he did “not establish[],” when that

remark is read in context it is clear that the court correctly placed the burden on the

government to prove all elements of the offenses beyond a reasonable doubt. See

id.

AFFIRMED.