NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50206
Plaintiff - Appellee, D.C. No. 3:13-cr-04151-LAB-1
v.
MEMORANDUM*
JONATHAN REYES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted April 10, 2015
Pasadena, California
Before: SILVERMAN and BEA, Circuit Judges and QUIST,** Senior District
Judge.
Defendant–Appellant Jonathan Reyes appeals his conviction and sentence
after a jury trial for being an alien found in the United States after previously being
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
deported under 8 U.S.C. § 1326. We exercise jurisdiction under 28 U.S.C.
§§ 1291, 1294; 18 U.S.C. § 3742, and affirm.
1. Reyes moved to dismiss the indictment on the grounds his underlying
removal order was defective. See United States v. Mendoza-Lopez, 481 U.S. 828,
837–38 (1987). The district court correctly denied Reyes’s motion to dismiss the
indictment because, even if the agency’s violation of his right to a 14-day waiting
period before removal violated due process, that violation caused him no prejudice.
Reyes has provided no evidentiary basis for his claim that had he gone before an
immigration judge he would have had plausible grounds for relief from
deportation. See United States v. Arrieta, 224 F.3d 1076, 1082–83 (9th Cir. 2000).
2. Reyes argues the district court improperly permitted a government lay
witness to identify him at trial based on a photograph. Although that identification
was improper because the witness did not have “sufficient contact with the
defendant to achieve a level of familiarity that render[ed] the lay opinion helpful,”
United States v. Beck, 418 F.3d 1008, 1014 (9th Cir. 2005) (internal quotation
marks omitted), Reyes’s identity was proven by “other in-court identifications and
fingerprint evidence,” United States v. Albino-Loe, 747 F.3d 1206, 1211 (9th Cir.
2014). So, any error was harmless.
3. Reyes argues evidence regarding a document’s incorrect A-number was
not properly turned over pursuant to Fed. R. Crim. P. 16 and Brady v. Maryland,
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373 U.S. 83 (1963). But even if the evidence Reyes claims was suppressed were
material, it is neither likely (under Rule 16) nor reasonably probable (under Brady)
that the jury would have acquitted Reyes had he had earlier access to it. See United
States v. Doe, 705 F.3d 1134, 1152–53 (9th Cir. 2013). The incorrect number
appeared only on the notice of intent, not the removal order, warrant of removal, or
verification of removal (which also contained Reyes’ fingerprint). And the
arresting Border Patrol agent testified that Reyes made multiple admissions to him
that Reyes had previously been removed and did not have legal status in the United
States.
4. Reyes argues this Circuit’s model criminal jury instruction was incorrect
in this case because the instruction does not specifically reference the differing
burdens of proof in civil and criminal cases. The model jury instructions properly
instructed the jury on reasonable doubt. They were neither inaccurate nor
misleading. See United States v. Totoyan, 474 F.3d 1174, 1179 (9th Cir. 2007).
5. Reyes claims the statutory sentencing maximum for his crime was two
years because the district court did not require the government to prove his prior
conviction to the jury. This argument fails. The statutory maximum sentence
applicable to a particular defendant can only be increased by proof of the
enhancing fact at trial—unless that fact is a prior conviction, as it was here. See
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Reyes argues that
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Almendarez-Torres has been vitiated by Alleyne v. United States, 570 U.S. ___,
133 S. Ct. 2151 (2013). But that case does not explicitly overrule Almendarez-
Torres. Just as we held when Apprendi v. New Jersey seemed to disapprove of
Almendarez-Torres, “[t]he fact that the Supreme Court has expressed some
ambivalence about its own jurisprudence [in Almendarez-Torres] does not give us
the power to change it.” United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007).
AFFIRMED.
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