United States v. Cervantes-Ceja

115 F. App'x 384

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 2004
• Docket: No. 03-10647
• Status: Published

Opinion

MEMORANDUM

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Cervantes-Ceja appeals his conviction of entry and being found in the United States after having been deported in violation of 8 U.S.C. § 1326.

From the time he entered the United States from Mexico until he was apprehended thirty minutes later, CervantesCeja was never within the “official restraint” of the authorities and was not “deprived of his liberty” or “prevented from going at large within the United States.”¹ Unlike the alien in Pacheco-Medina,2 but like the alien in HemandezHerrera,3 Cervantes-Ceja was out of sight. It was not plain error for the district court not to define further the elements of § 1326 in the jury instructions,⁴ and the district court properly denied CervantesCeja’s motion for acquittal.⁵

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . See United States v. Hernandez-Herrera, 273 F.3d 1213, 1218-19 (2001); United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir.2000).

2 . See Pacheco-Medina, 212 F.3d at 1164-65.

3 . See Hernandez-Herrera, 273 F.3d at 1219.

4 . See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

5 . See United States v. Castellanos-Garcia, 270 F.3d 773, 775-77 (9th Cir.2001).