FILED
NOT FOR PUBLICATION DEC 21 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 09-30067, 09-30068,
09-30071
Plaintiff - Appellee,
D. C. No. CR-08-131-GF-SEH,
v. D. C. No. CR-08-111-GF-SEH,
D. C. No. CR-08-154-GF-SEH
SALVADOR AVILA-RIVERA,
Defendant - Appellant. MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted December 7, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON, and BERZON, Circuit Judges.
Salvador Avila-Rivera (“Avila”) was convicted of being found in the United
States after having been removed from the country after an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2), and the district court sentenced Avila to
10 years and 5 months (125 months) of incarceration for that offense. At the time
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of his conviction, Avila was on supervised release for two previous convictions.
The district court found Avila to be in violation of the terms of his release for each
conviction, revoked his release, and imposed two sentences of two years (24
months) each, to run concurrently with one another but consecutively with the
sentence of 10 years and 5 months. Avila timely appealed. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
“A trial court’s denial of a motion for acquittal under Federal Rule of
Criminal Procedure 29 is reviewed de novo.” United States v. Johnson, 357 F.3d
980, 983 (9th Cir. 2004). We recently decided that an alien who is denied entry
into Canada from the United States has not left the United States, as a matter of
law, even if he has “technically traveled onto Canadian land.” United States v.
Ambriz-Ambriz, 586 F.3d 719,723 (9th Cir. 2009). Because Avila had not left the
United States, he was “found in” the United States when he was found and
detained at the Sweetgrass Port of Entry. See id. at 722-24. Because Avila was
found in the United States, there was evidence sufficient for a rational trier of fact
to conclude, as the jury in this case did, that Avila violated 8 U.S.C § 1326, and the
district court was correct to deny Avila’s Rule 29 motions.
“Whether a jury instruction misstates elements of a statutory crime is a
question of law reviewed de novo.” United States v. Castellanos-Garcia, 270 F.3d
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773, 775 (9th Cir. 2001). “Failure to instruct on the defense theory of the case is
reversible error if the theory is legally sound and evidence in the case makes it
applicable.” Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004). Because
Avila’s proposed jury instruction misstates the meaning of the term “found in” as
used in 8 U.S.C § 1326, and because the defense’s “official restraint” theory is
inapplicable to someone who has not left the United States, Ambriz-Ambriz, No.
08-30431 at *2-*4, the district court was correct to refuse to issue Avila’s proposed
instructions. The instructions the court did issue accurately stated the law, and thus
neither usurped the jury’s fact-finding role nor violated Avila’s Fifth and Sixth
Amendment rights.
“Preserved Apprendi [v. New Jersey, 530 U.S. 466 (2000)] challenges are
reviewed de novo.” United States v. Salazar-Lopez, 506 F.3d 748, 750 (9th Cir.
2007) (citations omitted). “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury.” Apprendi, 530 U.S. at 490. Because “prior convictions
need not be alleged in an indictment,” United States v. Grisel, 488 F.3d 844, 846
(9th Cir. 2007) (en banc) (citing Almendarez-Torres v. United States, 523 U.S.
224, 243-47 (1998)), the indictment brought against Avila raises no Apprendi
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concerns and, combined with the information provided at sentencing, was more
than sufficient to trigger 8 U.S.C. § 1326(b)(2).
“We review a district court’s determination that a prior conviction qualifies
for a sentencing enhancement under U.S.S.G. § 2L1.2 de novo.” United States v.
Valle-Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007). The government must prove
the existence of the prior conviction by clear and convincing evidence. Id. at 1201.
Under the modified categorical approach, “the court can examine documentation or
judicially noticeable facts that clearly establish that the conviction is a predicate
conviction for enhancement purposes.” United States v. Navidad-Marcos, 367
F.3d 903, 908 (9th Cir. 2004) (quotations and citations omitted). Here, Count I of
the charging document that led to Avila’s California conviction alleged that Avila
sold heroin, Avila’s lawyer at the time stated in his plea colloquy with the judge
that “we have truly just a one-count sale here,” and, most importantly, the official
judgment found Avila guilty of the “sale of heroin.” This is clear and convincing
evidence that Avila’s California prior conviction matched the category of “drug
trafficking offense” set forth at § 2L1.2(b)(1)(A) of the Sentencing Guidelines, and
the district court’s assessment of 16 additional offense levels was not error.
“We have historically reviewed the district court’s consideration of
non-binding policy statements, such as Chapter 7 [“Violations of Probation and
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Supervised Release”], for abuse of discretion. We review the sentence ultimately
imposed for reasonableness.” United States v. Miqbel, 444 F.3d 1173, 1176 (9th
Cir. 2006) (citations omitted). The district court, in its three-paragraph colloquy
with Avila regarding the reasoning behind the revocation sentences, noted that it
gave full consideration to the Chapter 7 policy statements, and discussed at length
Avila’s breach of trust. The record does not suggest that the two concurrent two-
year (24-month) revocation sentences, which are within the guideline range, are
either procedurally or substantively unreasonable, nor that the district court abused
its discretion when formulating them.
When reviewing sentences “[o]n appeal, we first consider whether the
district court committed significant procedural error, then we consider the
substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). “It would be procedural error for a district court to
fail to calculate-or to calculate incorrectly-the Guidelines range; . . . to fail to
consider the § 3553(a) factors; . . . or to fail adequately to explain the sentence
selected. . . .” Id. Substantive reasonableness is reviewed under an abuse of
discretion standard. Id. As to procedure, the district court correctly calculated the
guideline sentence both for Avila’s violation of 8 U.S.C. § 1362 and for his
revocation sentences, treated the guidelines as advisory rather than mandatory,
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considered the § 3553(a) factors when appropriate, did not rely on clearly
erroneous facts when choosing a sentence, and adequately explained its within-
guidelines sentences, thus satisfying the five hallmarks of procedural
reasonableness set forth in Carty. 520 F.3d at 993. As to substance, Avila’s main
objection is the same Apprendi-based objection to the assessment of 16 additional
offender levels, which, as discussed above, is unavailing. Avila does not raise, nor
does the record support, any other argument that the district court issued an
unreasonable sentence or otherwise abused its discretion.
AFFIRMED.
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