United States v. Cristobal Reyes-Rodriguez

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2021
• Docket: 19-10422
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 29 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10422

Plaintiff-Appellee, D.C. No. 2:16-cr-00055-GMS-1 v.

CRISTOBAL REYES-RODRIGUEZ, MEMORANDUM* AKA Christobal R/Reyes, AKA Christobal R. Reyes, AKA Cristobal Reyes Rodriguez, AKA Christabal Rodriguez, AKA Cristobal Rodriguez Reyes,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 19-10423

Plaintiff-Appellee, D.C. No. 2:19-cr-00415-GMS-1 v.

CRISTOBAL REYES-RODRIGUEZ, AKA Cristobal Reyes Rodriguez, AKA Christobal Reyes-Rodriguez,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted June 17, 2021 San Francisco, California

Before: SCHROEDER, M. SMITH, and VANDYKE, Circuit Judges.

Cristobal Reyes-Rodriguez appeals his jury conviction and sentence for

reentry as a removed alien in violation of 8 U.S.C. § 1326. Reyes-Rodriguez was

previously convicted of multiple felonies and twice removed from the United

States. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Reyes-Rodriguez claims that the district court committed plain error by

failing to offer a sua sponte instruction to the jury on derivative citizenship. See 8

U.S.C. § 1401(g). A citizen of the United States is not an alien and therefore

cannot be convicted of illegal reentry under 8 U.S.C. § 1326. 8 U.S.C.

§ 1101(a)(3); United States v. Sandoval-Gonzalez, 642 F.3d 717, 721–22 (9th Cir.

2011). At trial, however, Reyes-Rodriguez himself stated that he was not a citizen

of the United States upon questioning by his counsel. While Reyes-Rodriguez did

testify that his father had become a naturalized U.S. citizen, he did not offer any

evidence about his age at the time of his father’s naturalization or any other

information relevant to the derivative citizenship inquiry. The district court

2 therefore did not commit plain error by failing to instruct the jury on derivative

citizenship. See United States v. Espinoza-Baza, 647 F.3d 1182, 1192–93 (9th Cir.

2011) (holding that no jury instruction required when “the trial record contains

nothing more than a mere scintilla of evidence of derivative citizenship”).

Reyes-Rodriguez also claims that the district court erred by refusing to grant

him a two-point reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1(a). As the Application Notes explain, this reduction is generally “not

intended to apply to a defendant who puts the government to its burden of proof at

trial by denying the essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt. 2. The district court

appropriately found that Reyes-Rodriguez’s brief post-trial statement to the court

was untimely and did not merit departure from this general rule.

AFFIRMED.