United States v. Ledesma-Jimenez

52 F. App'x 77

Opinion

MEMORANDUM

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Hector Ledesma-Jimenez appeals his jury trial conviction and 57-month sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Ledesma-Jiminez’s first contention is that the district court judge erred by instructing the jury that it could find entry within the meaning of § 1326 if it found that the defendant exercised “free will” after crossing the border, without defining the term. We review de novo whether the jury instructions accurately define the elements of a statutory offense, but review the ultimate formulation of the instructions for an abuse of discretion. United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir.), cert. denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000). After reviewing the entire jury instruction, we conclude that the instruction as a whole was not erroneous because it required that the exercising of free will occur in the absence of official restraint. See United States v. Ramos-Godinez, 273 F.3d 820, 823-24 (9th Cir.2001), cert. denied, — U.S. -, 123 S.Ct. 253, — L.Ed.2d - (2002) (defining “entered” as having crossed the border and exercised free will while physically present in the country, even if for only a short period); United States v. Harrison, 34 F.3d 886, 889 (9th Cir.1994) (“A single instruction is not viewed in isolation, but in the context of the overall charge.”).

Ledsma-Jimenez’s second contention is that the district court improperly enhanced his sentence on the basis of a prior aggravated felony conviction that was neither admitted or charged in the indictment, nor proven beyond a reasonable doubt. This argument is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2000), cert. denied, 532 , 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

AFFIRMED.

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