IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21046
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAN CISNEROS-GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-246-1
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October 25, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Adan Cisneros-Garza was convicted of illegal reentry into the
United States in violation of 8 U.S.C. § 1326 after being deported
because of an aggravated felony conviction. He was sentenced to
fifty-six months in prison followed by three years of supervised
release. The jury found him not guilty of making a false statement
to obtain a passport. Cisneros appeals his conviction and sentence
on several grounds.
Cisneros first argues that his conviction should be reversed
because the district court improperly admitted evidence of his
*
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that this opinion should not be published and is not precedent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.
No. 00-21046
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prior convictions. After ruling that the evidence regarding his
prior convictions should have been excluded, the district court
strongly admonished the jury to disregard the convictions except to
the extent that they showed that Cisneros was in the United States
at those times. The district court renewed this admonition in the
jury instruction by ordering the jury not to consider the stricken
testimony and reminding the jury to base its verdict solely on
legally admissible evidence.
The jury’s verdicts indicate that it did, in fact, disregard
the improperly admitted evidence. The jury found Cisneros not
guilty of lying to obtain a passport. This is the count that goes
to Cisneros’s credibility. If Cisneros is correct in stating that
the jury considered the excluded evidence, it probably would not
have believed his testimony that he never lied to obtain a passport
and would have assumed that Cisneros also committed that crime.
Contrary to Cisneros’s assertion, the credibility of his
testimony that he was born in Brownsville, Texas was irrelevant to
his conviction for illegal reentry. Cisneros admitted that he
learned that he was born in Brownsville from a man who lived on the
ranch where Cisneros was raised. Because Cisneros did not have,
and could not have had, any personal knowledge that he was born in
Brownsville, his credibility was not in question on this issue.
Furthermore, Cisneros’s mother, Maria Garza Moya, testified that
she went to Brownsville with her husband in September 1950 for an
unknown reason and stayed in a house “with some people of his.”
Moya stated that while she was in Brownsville, she gave birth to
Cisneros. As soon as they were able, she and her husband took
No. 00-21046
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Cisneros back to Mexico and never applied for a birth certificate
in the United States. Moya testified that she never told Cisneros
that he was born in Brownsville.
Thus, the court’s instruction adequately neutralized any
potential prejudice from introducing the prior convictions. In
light of the record as a whole, there is no reasonable likelihood
that the jury was prejudiced by the improperly admitted evidence of
Cisneros’s prior convictions. Therefore, any error caused by the
erroneous admission of that evidence was harmless. See United
States v. Asibor, 109 F.3d 1023, 1032 (5th Cir. 1997).
Cisneros next argues that the district court erred in refusing
to grant him a continuance to authenticate documents upon which his
defense was based. We review the denial of a motion for
continuance for an abuse of discretion. United States v. Davis, 61
F.3d 291, 298 (5th Cir. 1995). “[T]rial judges have broad
discretion in deciding whether to grant continuances.” United
States v. Correa-Ventura, 6 F.3d 1070, 1074 (5th Cir. 1993).
Because our review of the record indicates that the district
court’s ruling was neither arbitrary nor unreasonable, it is
affirmed. United States v. Hughey, 147 F.3d 423, 431 (5th Cir.
1998).
Cisneros further argues that the district court should have
instructed the jury that his reasonable but mistaken belief that he
was entitled to enter the United States was a defense to the
illegal reentry charge. He concedes that this issue is foreclosed
by this court’s precedent in United States v. Trevino-Martinez, 86
No. 00-21046
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F.3d 65, 68 (5th Cir. 1996), but raises it to preserve it for
further review.
Finally, Cisneros points out that the sentence imposed orally
by the district court conflicts with the written judgment. The
district court orally imposed a three-year term of supervised
release, but the written judgment reflects a four-year term. A
three-year term of supervised release is the maximum allowed for a
conviction under 8 U.S.C. § 1326, a class C felony. See 18 U.S.C.
§§ 3559(a)(3) and 3582(b)(2). The sentence pronounced by the court
controls over the sentence in the written judgment. United States
v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001). This case is
remanded for the limited purpose of allowing the district court to
amend its written judgment to conform to its oral sentence. Id.
CONVICTION AFFIRMED. REMANDED FOR CORRECTION OF JUDGMENT.