United States v. Silva-Gonzalez

171 F. App'x 702

Opinion

MEMORANDUM

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Ruben Silva-Gonzalez appeals his conviction for illegally entering the United States after having been deported in violation of 8 U.S.C. § 1326. We affirm. Because the parties are familiar with the factual history of this case, we do not recount it here.

I

Derivative citizenship is a defense to a charge of illegally entering the United States after having been deported. United States v. Smith-Baltiher, 424 F.3d 913, 922 (9th Cir.2005). A defendant is entitled to present evidence in his defense. Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002). However, this right is not unlimited. Id. It is subject to reasonable restrictions “to accommodate other legitimate interests in the criminal trial process.” United States v. Scheffer, 523 U.S. 303, 308,118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973))). Thus, a trial judge may exclude or limit evidence to prevent excessive consumption of time, undue prejudice, confusion of the issues, or misleading the jury. Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir.2005). The trial judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or disproportionate. Id.

Here, the defendant did not tender any affirmative evidence of derivative citizenship. Viewing the complete record in context, we cannot say that the trial judge abused his discretion in limiting cross-examination.

Because the record lacks evidence from which the jury could rationally have sustained the defense, the trial court did not err in denying a jury instruction on the defense. See United States v. Jackson, 726 F.2d 1466,1468 (9th Cir.1984).

II

The district court properly took judicial notice of Silva-Gonzalez’s prior convictions because prior convictions do not have to be proven to a jury. United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Unless and until the Supreme Court explicitly overrules AlmendarezTorres, it controls our analysis here. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005). Almendarez-Torres also forecloses the argument that 8 U.S.C. § 1326 is unconstitutional.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.