United States v. Jorge Mariscal

Ninth Circuit

United States v. Jorge Mariscal

491 F. App'x 807

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 9, 2012

Docket11-50349

StatusUnpublished

This text of 491 F. App'x 807 (United States v. Jorge Mariscal) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Jorge Mariscal, 491 F. App'x 807 (9th Cir. 2012).

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Opinion

MEMORANDUM **

Following a bench trial, Appellant Jorge Mariscal (“Mariscal”) was convicted of violating 8 U.S.C. § 1326(a), which prohibits an alien from illegally reentering the United States after he previously left the country while an order of removal was outstanding. On appeal, Mariscal argues that the government failed to sufficiently prove his prior physical departure.

Where a party on appeal challenges the sufficiency of the evidence, we view the evidence “in the light most favorable to the prosecution,” and then determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Appellant relies heavily on United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir.2009), where we held that if the government seeks to rely on a notice of reinstatement to remove an alien, the defendant must have an opportunity to challenge the underlying order of removal. Here, however, Mariscal does not dispute the validity of the underlying 2007 Order of Removal. Therefore, we need not determine whether the 2010 Notice of Reinstatement was valid.

Similarly, Mariscal does not dispute the validity of the 2010 Warrant of Removal, dated September 8, 2010, which contains Mariscal’s fingerprints and the sworn statement of an immigration officer stating that he removed Mariscal to Mexico “on foot” that day. Therefore, the district court properly found that the government sufficiently proved Mariscal’s physical departure beyond a reasonable doubt. See United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir.2006) (warrant of removal “sufficient alone to support a finding of removal beyond a reasonable doubt”) (emphasis added) (citing United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.2005) (warrant of removal *809 “provided sufficient evidence of physical removal”)).

AFFIRMED.

**

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

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MEMORANDUM **

Following a bench trial, Appellant Jorge Mariscal (“Mariscal”) was convicted of violating 8 U.S.C. § 1326(a), which prohibits an alien from illegally reentering the United States after he previously left the country while an order of removal was outstanding. On appeal, Mariscal argues that the government failed to sufficiently prove his prior physical departure.

Where a party on appeal challenges the sufficiency of the evidence, we view the evidence “in the light most favorable to the prosecution,” and then determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Appellant relies heavily on United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir.2009), where we held that if the government seeks to rely on a notice of reinstatement to remove an alien, the defendant must have an opportunity to challenge the underlying order of removal. Here, however, Mariscal does not dispute the validity of the underlying 2007 Order of Removal. Therefore, we need not determine whether the 2010 Notice of Reinstatement was valid.

Similarly, Mariscal does not dispute the validity of the 2010 Warrant of Removal, dated September 8, 2010, which contains Mariscal’s fingerprints and the sworn statement of an immigration officer stating that he removed Mariscal to Mexico “on foot” that day. Therefore, the district court properly found that the government sufficiently proved Mariscal’s physical departure beyond a reasonable doubt. See United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir.2006) (warrant of removal “sufficient alone to support a finding of removal beyond a reasonable doubt”) (emphasis added) (citing United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.2005) (warrant of removal *809 “provided sufficient evidence of physical removal”)).

AFFIRMED.

**

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

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