United States v. Oro-Barahona

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 96-31152 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADORE ORO-BARAHONA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana New Orleans Division (96-CR-184-J) _________________________________________________________________ July 31, 1997 Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:1

Salvadore Oswaldo Oro-Barahona was convicted after a jury

trial of being a previously arrested and deported alien found in

the United States without consent of the Attorney General. See 8

U.S.C. § 1326(a). On appeal, he challenges the sufficiency of

the evidence to establish that he was previously deported and

1 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. that he is an alien. Finding sufficient evidence on both

elements, we affirm.

Immigration and Naturalization Service (INS) agents

George Lund and Michael Meskill testified that they arrested Oro-

Barahona on June 19, 1996, after receiving an anonymous tip that

he was living in the United States illegally. Agent Lund

testified that he had previously arrested Oro-Barahona in 1990

for being a citizen of Honduras in the United States illegally.

A warrant of deportation for Oro-Barahona was signed on

behalf of the INS District Director in New Orleans on June 6,

1995. INS officer Robert Smith executed the warrant on October

26, 1995 by observing Oro-Barahona board a flight to Honduras.

Glenn Burmaster, a New Orleans Police Department fingerprint

examiner, testified that Oro-Barahona’s thumbprint appears on the

warrant, on a fingerprint card showing that Oro-Barahona was

arrested on July 24, 1990, and on a fingerprint card showing his

arrest on June 19, 1996. Oro-Barahona’s signature appears on the

June 19, 1996 fingerprint card, and that card lists his place of

birth as Honduras. The government also introduced evidence that

Oro-Barahona had not received permission from the attorney

general to return to the United States.

2 Oro-Barahona argues that the evidence is insufficient to

establish that he had been previously deported. Oro-Barahona

moved for judgment of acquittal based on this argument, thus we

review the evidence to see if any rational trier of fact could

have found the element of the crime beyond a reasonable doubt.

United States v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir.

1995). Oro-Barahona argues that the evidence of deportation is

insufficient because the warrant for deportation is signed by an

unidentified individual. We disagree. INS Agent Stephen

Lindgren testified that the warrant was signed on behalf of the

district director by an authorized INS agent. INS officer Smith

testified that he executed the warrant by observing Oro-Barahona

board a plane for Honduras. This is ample evidence for a

rational jury to decide that Oro-Barahona had previously been

deported.

Oro-Barahona also argues that the government did not

present sufficient evidence to establish that he is an alien. He

argues that the only evidence supporting his alien status was the

warrant of deportation and unsupported statements by the

officers. Oro-Barahona cites a line of cases in the Ninth

Circuit holding that a warrant of deportation is insufficient

evidence, standing alone, to support a conviction under §

3 1326(a). See United States v. Meza-Soria, 935 F.2d 166, 169 (9th

Cir. 1991); United States v. Ortiz-Lopez, 24 F.3d 53, 55 (9th

Cir. 1994).

Oro-Barahona did not raise a sufficiency challenge to the

alien element below, and admits that the applicable standard of

review is plain error. Plain error requires that 1) there is

error, 2) which is clear or obvious, 3) which affected

substantial rights, and 4) which will seriously affect the

fairness, integrity or public reputation of judicial proceedings

if allowed to stand. United States v. Calverley, 37 F.3d 160, 162

(5th Cir.1994) (en banc), cert. denied, ___ U.S. ___, 115 S.Ct.

1266 (1995). We find no plain error here. In this case, unlike

the Ninth Circuit cases, more than just the deportation order

tended to prove Oro-Barahona’s status as an alien. Two

fingerprint cards indicate that his place of birth or citizenship

is Honduras, and one card includes Oro-Barahona’s signature. INS

officers testified that he was an alien previously arrested for

unlawfully being in the United States. An INS officer also

testified that he executed the warrant of deportation and

witnessed Oro-Barahona depart for Honduras. The warrant of

deportation recites when and where Oro-Barahona entered the

United States. Oro-Barahona’s prior deportation, combined with

4 the other evidence indicating that he was not a U.S. citizen,

could lead a rational jury could conclude that Oro-Barahona was

an alien.

AFFIRMED.