United States v. Salazar-Lopez

252 F. App'x 153

Opinion

MEMORANDUM

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We address here Manuel Salazar-Lopez’s challenge to his 8 U.S.C. § 1326 conviction.¹ We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

After reviewing the record, we hold that there was sufficient evidence for a jury to conclude that Salazar-Lopez was not under official restraint for the entire time that he was within the United States. Agent Garcia testified that Salazar-Lopez was not observed by camera until after seismic sensors within the United States had been triggered; thus he was already in the United States before any observation that could constitute official restraint began. See United States v. Cruz-Escoto, 476 F.3d 1081, 1085-86 (9th Cir.2007) (holding that aliens “who evade government observation while crossing the border are deemed to be free from official restraint, regardless of the distance they travel between entry and arrest”); United States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir.2005) (holding that detection by seismic sensors does not constitute official restraint). While Salazar-Lopez argues that the lack of testimony from the camera operator creates a reasonable doubt as to whether he was under observation from the moment he crossed the border, his case is indistinguishable from United States v. Bello-Bahena, 411 F.3d 1083, 1088 (9th Cir.2005). As Bello-Bahena held that missing testimony from a scope operator, on the issue of continuous observation, did not require a judgment of acquittal in the similar circumstances of that case, see id., we affirm Salazar-Lopez’s conviction.

AFFIRMED.

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

1 . We resolve his sentencing challenges in a separate published opinion.