United States v. Ruben Palacios-Herrera

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 8, 2020
• Docket: 19-50126
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50126

Plaintiff-Appellee, D.C. No. 3:18-cr-04472-BAS-1 v.

RUBEN PALACIOS-HERRERA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Submitted May 8, 2020** Pasadena, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and STEIN,*** District Judge.

Ruben Palacios-Herrera appeals his jury conviction for illegal entry into the

United States in violation of 8 U.S.C. § 1325. Palacios-Herrera makes two

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Sidney H. Stein, United States District Judge for the Southern District of New York, sitting by designation. arguments on appeal. First, he argues that during jury selection, the district court

mishandled his challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).

Second, Palacios-Herrera maintains that the district court erred in admitting, over

his objection, his 2015 misdemeanor judgment for illegal entry into the United

States, which the government used to prove felony illegal entry at his trial. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We review a district court’s application of the three-part Batson

framework de novo. United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir.

2015). “First, a defendant must make a prima facie showing that a peremptory

challenge has been exercised on the basis of race. Second, if that showing has been

made, the prosecution must offer a race-neutral basis for striking the juror in

question. Third, in light of the parties’ submissions, the trial court must determine

whether the defendant has shown purposeful discrimination.” Id. (quoting Miller–

El v. Cockrell, 537 U.S. 322, 328–29 (2003)). The district court’s findings are

reviewed “deferentially, for clear error.” United States v. Hernandez-Herrera, 273

F.3d 1213, 1218 (9th Cir. 2001).

Here, the district court decided that Palacios-Herrera made a prima facie

showing of purposeful discrimination at step one of the Batson analysis. In

response to the prosecutor’s articulated reasons for striking the prospective juror at

step two, the district court did not make an express finding concerning purposeful

2 19-50126 discrimination. However, “[f]aced with an improper application of the Batson

framework, we may decide de novo whether the government’s strikes were

motivated by purposeful discrimination.” Alvarez-Ulloa, 784 F.3d at 565. Here, de

novo review of the record does not support a finding of purposeful discrimination.

Given that there was only one peremptory strike of an Hispanic juror out of a

venire that included at least six Hispanic people; that two Hispanic members of the

venire were actually impaneled; and that a juror’s demeanor can be a permissible,

race-neutral reason for a peremptory challenge, see Snyder v. Louisiana, 552 U.S.

472, 477 (2008), no purposeful discrimination was shown.

2. We review a district court’s evidentiary rulings for abuse of

discretion. United States v. Haines, 918 F.3d 694, 697 (9th Cir. 2019). Here,

however, we need not determine whether the district court erred in admitting into

evidence a certified copy of the judgment of Palacios-Herrera’s 2015 misdemeanor

illegal entry, since any error was harmless. The parties entered a stipulation into

the record that Palacios-Herrera had previously committed the crime of entering

the United States illegally. Furthermore, we have “refuse[d] to hold that a certified

copy of a prior conviction is the only evidence sufficient to prove a prior

conviction.” United States v. Arriaga-Segura, 743 F.2d 1434, 1436 (9th Cir. 1984)

(emphasis added). Here, the jury heard testimony from a border patrol officer

regarding Palacios-Herrera’s prior conviction and the parties’ stipulation before the

3 19-50126 court admitted the certified judgment of his conviction into evidence. Thus, the

jury had enough evidence to conclude beyond a reasonable doubt that Palacios-

Herrera had committed the prior offense, even without the admitted judgment.

AFFIRMED.

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