United States v. David Lazo-Romero

FILED
NOT FOR PUBLICATION JAN 09 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50466

Plaintiff - Appellee, D.C. No. 3:10-cr-01366-MMA-1

v.
MEMORANDUM*
DAVID FRANCISCO LAZO-ROMERO,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding

Submitted August 30, 2013**
Pasadena, California

Before: O’SCANNLAIN and BEA, Circuit Judges, and NAVARRO, District
Judge.***

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Gloria M. Navarro, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
Defendant-Appellant David Francisco Lazo-Romero appeals his conviction

of illegal reentry in violation of 8 U.S.C. § 1326. We affirm. Even if the delay in

Lazo-Romero’s presentment to the magistrate was unreasonable or unnecessary

under the circumstances of the case, see Corley v. United States, 556 U.S. 303

(2009); United States v. Garcia-Hernandez, 569 F.3d 1100 (9th Cir. 2009), any

error was harmless. It is less probable than not that such error materially affected

the verdict. United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).

Even without Lazo-Romero’s post-Miranda, pre-arraignment confession, an

abundance of evidence supported the verdict that Lazo-Romero knowingly and

illegally re-entered the United States. Border Patrol agents discovered Lazo-

Romero three miles north of the border, in a desolate area in rough terrain, at night,

carrying a backpack, and moving north. He attempted to avoid detection by hiding

in brush. Immediately after being discovered, he admitted to being a national of El

Salvador without permission to enter or remain legally in the United States. He

had a lengthy immigration history, which included previous deportation. The

government has met its burden to show a “fair assurance of harmlessness,” and that

any error was harmless. Seschillie, 310 F.3d at 1214 (internal quotation marks

omitted).

AFFIRMED.