United States v. Noriega-Zamora

83 F. App'x 921

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2003
• Docket: No. 02-50475
• Status: Published

Opinion

MEMORANDUM

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Jose Ernesto Noriega-Zamora appeals his conditional guilty plea conviction 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.

Noriega-Zamora contends that the district court erred by denying his motion to dismiss the indictment based on the government’s oral modification of the elements presented to the grand jury. We review de novo the denial of a motion to dismiss an indictment. United States v. Haynes, 216 F.3d 789, 796 (9th Cir.2000). Because the date of deportation is not an element of the charged offense, and the additional evidence relied upon by the government did not support a crime other than that charged in the indictment, there was no constructive amendment of the indictment. See United States v. Alvarez, 972 F.2d 1000, 1003-04 (9th Cir.1992) (per curiam). Accordingly, we affirm the district court’s denial of Noriega-Zamora’s motion to dismiss the indictment.

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.