United States v. Cruz Gavino-Mariscal

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2020
• Docket: 18-10316
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 18 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10316

Plaintiff-Appellee, D.C. No. 4:17 cr-0750 RCC

v. MEMORANDUM* CRUZ ALONSO GAVINO-MARISCAL,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Argued and Submitted February 7, 2020 Arizona State University, Phoenix, Arizona

Before: TASHIMA, HURWITZ, and MILLER, Circuit Judges.

Cruz Alonso Gavino-Mariscal appeals his conviction and sentence for

willfully and knowingly making a false statement in an application for a passport,

in violation of 18 U.S.C. § 1542. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Reviewing for plain error, see United States v. Leos-Maldonado, 302

F.3d 1061, 1064 (9th Cir. 2002), we reject Gavino-Mariscal’s challenge to the

sufficiency of the indictment. Gavino-Mariscal has not shown that any purported

error affected his substantial rights, because he has not shown that including a

reference to 22 C.F.R. § 51.20(b) in the indictment would have altered his defense

at trial or affected the outcome of the district court proceedings. See id. at

1064–65; United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992).

2. Reviewing for plain error, see United States v. Alferahin, 433 F.3d

1148, 1154 (9th Cir. 2006), we reject Gavino-Mariscal’s challenge to the jury

instructions. Even assuming that there was error, Gavino-Mariscal has not shown

that the error affected his substantial rights.

3. Sufficient evidence supports the jury’s verdict. See Cavazos v. Smith,

565 U.S. 1, 2 (2011) (per curiam) (“A reviewing court may set aside the jury’s

verdict on the ground of insufficient evidence only if no rational trier of fact could

have agreed with the jury.”). Although Gavino-Mariscal possessed a facially valid

California birth certificate, the government presented evidence that the birth

certificate was procured by fraud, that Gavino-Mariscal was born in Mexico, and

that he was aware of his Mexican birth at the time he submitted his passport

application.

2 4. The district court adequately explained Gavino-Mariscal’s sentence.

The sentencing laws “do not require that a district court always specifically justify

its choice between concurrent and consecutive sentences.” United States v. Fifield,

432 F.3d 1056, 1066 (9th Cir. 2005). “The district court need not tick off each of

the § 3553(a) factors to show that it has considered them.” United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008) (en banc). Further, Gavino-Mariscal has not

identified any “specific, nonfrivolous argument tethered to a relevant § 3553(a)

factor” that the district court failed to address. See id. at 992–93.

AFFIRMED.