United States v. Cordova-De La Cruz

103 F. App'x 328

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2004
• Docket: No. 03-50386
• Status: Published

Opinion

MEMORANDUM

**

Eucebio Cordova-De La Cruz appeals his conviction for being a previously deported alien found in the United States without permission, in violation of 8 U.S.C. § 1326(a). We review de novo whether the jury instructions accurately defined the elements of the offense and whether they adequately covered the defendant’s theory of defense. United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.2000). We also review de novo the sufficiency of an indictment. United States v. Rodriguez-Rodriguez, 364 F.3d 1142, 1145 (9th Cir. 2004).

The district court correctly instructed the jury that it needed to find that Cordova was free from official restraint at the time he was found in the United States. See United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir.2001). Cordova’s proffered instruction was not supported by the evidence. Likewise, the district court correctly denied Cordova’s attacks on the indictment. The indictment adequately alleged the necessary elements of the offense; it did not need to allege that Cordova’s entry was voluntary or that he evaded inspection. See United States v. Pargar-Rosas, 238 F.3d 1209, 1214 (9th Cir.2001); Rodriguez-Rodriguez, 364 F.3d at 1146 (holding that Par-gar-Rosas was not overruled by United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc)).

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.