United States v. Apolinar Gutierrez-Hernandez

654 F. App'x 871

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2016
• Docket: 15-50163, 15-50164
• Status: Unpublished

Opinion

MEMORANDUM ***

1. In No. 15-50164, Apolinar Gutierrez-Hernandez challenges his conviction for attempted reentry of a removed alien. Neither of the arguments he raises provides a basis for reversal.

First, none of the prosecutor’s statements during closing argument constituted error, much less plain error. The prosecutor did not ask the jury to consider the verdict’s social ramifications or urge the jury to convict Gutierrez-Hernandez for reasons “wholly irrelevant” to his guilt or innocence, such as “to protect community values, preserve civil order, or deter future lawbreaking.” United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011) (citation omitted). Nor did the prosecutor’s statements dilute the government’s burden of proof or attempt to shift the burden of proof to the defendant. See United States v. Segna, 555 F.2d 226, 280 (9th Cir. 1977). Finally, contrary to Gutierrez-Hernandez’s contention, the prosecutor did not vouch for the strength of the government’s case. The prosecutor never assured the jurors about the strength of the government’s evidence or suggested to them that other information not presented at trial supported the government’s position. See United States v. Ruiz, 710 F.3d 1077, 1085 (9th Cir. 2013).

Even if any of the prosecutor’s statements were improper, they did not affect Gutierrez-Hemandez’s “substantial rights” or “the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citation omitted). Gutierrez-Hernandez contends that had the prosecutor not made the challenged statements, the jury would likely have found reasonable doubt as to his al- ienage, the sole issue in dispute. But the government presented strong evidence that Gutierrez-Hernandez was not a U.S. national—namely, his admission during his arrest that he was a Mexican national, and his admission in two prior court proceedings that he was not a U.S. national.

Second, the district court did not err by using the Ninth Circuit’s model jury instruction on reasonable doubt. We have repeatedly upheld this instruction against challenges similar to those raised by Gutierrez-Hernandez here. See United States v. Alcantara-Castillo, 788 F.3d 1186, 1198 n.4 (9th Cir. 2015);

2. In No. 15-50163, Gutierrez-Hernandez filed a notice of appeal from the district court’s judgment that he violated the terms of his supervised release. In his opening brief, however, he has abandoned any challenge to the revocation of his supervised release.

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.