FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50433
Plaintiff-Appellee, D.C. No.
v. CR-04-02506-NAJ
JORGE ENRIQUE LOPEZ, ORDER
Defendant-Appellant. AMENDING
OPINION AND
AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
March 8, 2006—Pasadena, California
Filed November 30, 2006
Amended July 27, 2007
Before: Susan P. Graber, Kim McLane Wardlaw, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Judge Wardlaw
9115
UNITED STATES v. LOPEZ 9119
COUNSEL
Chase Scolnick, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Timothy F. Salel, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
ORDER
The opinion filed on November 30, 2006 is amended as fol-
lows:
1. Slip Opinion page 18874, Section II.A. —
change the second sentence to read: “Lopez
does not challenge all of the prosecutor’s com-
ments regarding his silence, as he rightfully
concedes that it was appropriate to question or
comment on Mr. Lopez’s pre-arrest failure to
offer his duress explanation.1
1
Comments referring to post-arrest, pre-
Miranda silence are also permissible. See
United States v. Baker, 999 F.2d 412, 415
(9th Cir. 1993).”
2. Slip Opinion page 18875, Section II.A.i., first
paragraph, line 8 — change “483 U.S. 756” to
“483 U.S. 756 [,762] . . .”
3. Slip Opinion page 18875, Section II.A.i., first
paragraph, line 10 — change “post-arrest
silence” to “post arrest [, post-Miranda] silence
. . .”
4. Slip Opinion page 18875, Section II.A.i., sec-
ond paragraph, last two lines — change
9120 UNITED STATES v. LOPEZ
“United States v. Baker, 999 F.2d 412, 415 (9th
Cir. 1993)” to “Baker, 999 F.2d at 415.”
5. Slip Opinion page 18878, first full paragraph,
line 3 — insert “regarding Lopez’s post-
Miranda silence” between “elicited testimony”
and “and improperly referenced.”
6. Slip Opinion page 18878, first full paragraph,
penultimate line — delete the stray opening
parenthesis between “agents.” and “The . . .”
7. Slip Opinion page 18878 n.2, line 10 —
replace “in order to get away from” with “to
escape.”
8. Slip Opinion page 18879, line 3 — change
“jury deliberation” to “jury deliberations . . .”
9. Slip Opinion page 18881, line 16 - change
“which concluded” to “that concluded . . .”
10. Slip Opinion page 18882, second full para-
graph — change the first sentence to read:
“Lopez’s challenge to the district court’s find-
ing of the fact of his prior conviction is fore-
closed by our precedent.”
11. Slip Opinion page 18882, second full para-
graph — delete all text following the Delaney
parenthetical and replace with the following:
Lopez also contends that his sentence
violates Apprendi because of the require-
ment that the removal subsequent to a prior
conviction be admitted by the defendant or
proven to a jury beyond a reasonable doubt.
See United States v. Covian-Sandoval, 462
UNITED STATES v. LOPEZ 9121
F.3d 1090, 1097-98 (9th Cir. 2006); see
also United States v. Zepeda-Martinez, 470
F.3d 909, 910 (9th Cir. 2006); United
States v. Martinez-Rodriguez, 472 F.3d
1087, 1092 (9th Cir. 2007), as amended.
However, the record in this case reflects
that Lopez admitted both the date of his
prior conviction (2002) and the date of his
subsequent deportation (2004). Thus, no
Apprendi violation occurred when the dis-
trict court applied the established temporal
sequence to enhance Lopez’s sentence. See
Covian-Sandoval, 462 F.3d at 1098 (recog-
nizing that if the removal subsequent to a
prior conviction is admitted, no Apprendi
violation occurs).
We also note the additional fact that only
one deportation was presented to the jury in
this case. As we recognized in Martinez-
Rodriguez, 472 F.3d at 1094, in such a cir-
cumstance, the jury “necessarily found,
beyond a reasonable doubt, that [Lopez]
had been previously removed subsequent to
his prior aggravated felony convictions.”
Accordingly, because Lopez admitted the
dates of his conviction and subsequent
removal and because the jury necessarily
found the date of removal, no Apprendi vio-
lation occurred in this case.
12. Slip Opinion page 18883 — change the last
sentence to read: “Finally, because the fact of
Lopez’s prior conviction was admitted by him
and necessarily found by the jury, no Apprendi
violation occurred.”
9122 UNITED STATES v. LOPEZ
In addition to these amendments, the opinion is amended to
include the attached concurrence by Judge Wardlaw.
With these amendments, the panel has voted to deny the
petition for rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.
The petition for rehearing and petition for rehearing en
banc are DENIED. No further petitions for rehearing or peti-
tions for rehearing en banc may be filed.
OPINION
RAWLINSON, Circuit Judge:
In this appeal, we must decide whether the government’s
impermissible references to Appellant Jorge Enrique Lopez’s
post-Miranda silence mandate reversal of his conviction.
Because we conclude that any error was harmless beyond a
reasonable doubt and, because none of Lopez’s other asser-
tions of error is meritorious, we affirm the conviction and sen-
tence.
I. FACTS AND PROCEDURAL HISTORY
On September 17, 2004, Lopez entered the United States
and was arrested by a United States Border Patrol Senior
Patrol Agent and transported to a Border Patrol Station, where
he was processed. Subsequently, Lopez was indicted for being
a deported alien found in the United States in violation of 8
U.S.C. § 1326.
At trial, Lopez took the stand and asserted a duress defense.
Lopez testified that he entered the United States, hoping to get
UNITED STATES v. LOPEZ 9123
arrested and avoid being harmed by a drug dealer. During
cross-examination, Lopez was questioned about whether he
related the harm that he faced to any of the various people
with whom he came into contact before he was transported to
the Border Patrol Station. Lopez admitted that he did not tell
anyone about the threats. The prosecutor also questioned
Lopez about what he told the agents at the Border Patrol Sta-
tion, where Lopez was processed and given his constitution-
ally mandated Miranda warning by Agent Michael
Harrington (Harrington). The relevant portion of the line of
questioning began as follows:
Q. You never told any of the border patrol agents
about any threats that occurred to you in Mex-
ico, did you?
A. No, sir.
Q. You never told any of the border patrol agents
who were there about any guys with knives who
were chasing you, did you?
A. No, sir.
Q. You didn’t tell any of them about anything
about being scared, running for your life into
the United States, did you?
A. No, sir.
Q. You didn’t tell [Harrington] about, [sic] “I am
actually scared because I was running from a
guy who tried to kill me.” You never told him
that, did you?
A. No, sir.
(Emphasis added).
9124 UNITED STATES v. LOPEZ
Lopez objected to this series of questions. The district court
overruled the objection on the basis that the questions were in
reference to Lopez’s pre-Miranda processing.
The prosecutor began his closing argument by noting that
while Lopez was at the port of entry, he failed to “indicate to
anyone whatsoever that he feared for his life” and reiterated
that “there was no person that [Lopez] went to and explained
the circumstances.” During rebuttal, the prosecutor stated that
“[Lopez] was hanging out near to [the] port of entry; [sic] did
not tell any of the agents, any of the immigration officers, any
of the customs officials, anybody, that he had been threatened
whatsoever.”
Lopez was convicted and sentenced to thirty months’
imprisonment.
II. DISCUSSION
A. Fifth Amendment
According to Lopez, the Government violated his Fifth
Amendment right to remain silent by impermissibly com-
menting on his post-arrest silence. Lopez does not challenge
all of the prosecutor’s comments regarding his silence, as he
rightfully concedes that it was appropriate to question or com-
ment on Mr. Lopez’s pre-arrest failure to offer his duress expla-
nation.1 United States v. Beckman, 298 F.3d 788, 795 (9th Cir.
2002). “We review de novo whether references to a defen-
dant’s silence violate his Fifth Amendment privilege against
self-incrimination.” United States v. Bushyhead, 270 F.3d
905, 911 (9th Cir. 2001). “If there was an improper comment
on a defendant’s silence at trial, violating the Fifth Amend-
ment privilege against self-incrimination, we apply harmless
error review.” Id.
1
Comments referring to post-arrest, pre-Miranda silence are also per-
missible. See United States v. Baker, 999 F.2d 412, 415 (9th Cir. 1993).
UNITED STATES v. LOPEZ 9125
i. Doyle Error
[1] The Fifth Amendment right to remain silent contains an
implicit assurance “that silence will carry no penalty.” Doyle
v. Ohio, 426 U.S. 610, 618 (1976). “[I]t would be fundamen-
tally unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.” Id. (footnote reference omitted).
However, “[t]he Supreme Court has subsequently held in
Greer v. Miller, 483 U.S. 756[, 762] (1987), that there is no
Doyle violation if the district court promptly sustains a timely
objection to a question concerning post arrest[, post-Miranda]
silence, instructs the jury to disregard the question, and gives
a curative jury instruction.” United States v. Foster, 985 F.2d
466, 468 (9th Cir. 1993), as amended, 995 F.2d 882 (9th Cir.
1993) and 17 F.3d 1256 (9th Cir. 1994).
[2] The prosecutor’s cross-examination technique consisted
of questioning Lopez chronologically about the various peo-
ple with whom he interacted at the border. However, the
inquiries regarding what Lopez failed to tell Harrington vio-
lated Doyle, because Lopez’s contact with Harrington encom-
passed both pre-Miranda and post-Miranda periods. By
drawing attention to the fact that Lopez “never” mentioned
the alleged threats to Harrington, the prosecutor implicated
Lopez’s silence both pre-Miranda and post-Miranda. “Even
if counsel for the government intended his comments to refer
only to post-arrest/pre-Miranda silence, the actual language
used contains no such limitation and it is highly doubtful that
the jury understood any such limitation.” Baker, 999 F.2d at
415.
Similarly, although for the most part the prosecutor permis-
sibly referenced Lopez’s pre-Miranda silence during closing
argument, he also made overly broad references that imper-
missibly encompassed Lopez’s failure to mention the threats
to anyone after the invocation of his right to remain silent.2
2
We reject the government’s argument that its comments constituted a
fair response to testimony that Lopez’s counsel invited. The questions
9126 UNITED STATES v. LOPEZ
“[A] prosecution closing argument that broadly condemn[s]
appellant[’s] silence: pre-Miranda and post-Miranda vio-
late[s] due process.” United States v. Whitehead, 200 F.3d
634, 639 (9th Cir. 2000) (citation and internal quotation
marks omitted).
[3] In sum, Doyle error occurred when the prosecutor asked
Lopez whether he ever told Harrington about the threats he
received, and when he argued during closing argument that
“[t]here was no duress related to any government agent.”
ii. Harmless Error
[4] The burden of proving a constitutional error harmless
beyond a reasonable doubt rests upon the government. United
States v. Williams, 435 F.3d 1148, 1162 (9th Cir. 2006).
“When deciding whether a prosecutor’s reference to a defen-
dant’s post-arrest silence was prejudicial, this court will con-
sider the extent of comments made by the witness, whether an
inference of guilt from silence was stressed to the jury, and
the extent of other evidence suggesting defendant’s guilt.”
Bushyhead, 270 F.3d at 913 (citation omitted).
[5] The only witness who testified about Lopez’s post-
Miranda silence was Lopez himself, on cross-examination.
However, the “quantitative extent” of Lopez’s responses
regarding his post-Miranda silence “was not great in relation
to the remainder of his testimony,” which focused on Lopez’s
failure to tell the various people he encountered pre-Miranda
about the threats he received. United States v. Velarde-
Gomez, 269 F.3d 1023, 1035 (9th Cir. 2001) (en banc). Fur-
posed on direct examination addressed only pre-Miranda exchanges,
while the government’s cross-examination strayed into post-Miranda
exchanges. Where, as here, the government’s comments are far broader
than a mere response to defense questioning, the error in commenting on
post-Miranda silence is not invited. See Baker, 999 F.2d at 416 n.5.
UNITED STATES v. LOPEZ 9127
ther, “the qualitative extent” of Lopez’s testimony implicating
his post-Miranda silence was limited; the prosecutor’s “man-
ner of questioning” focused primarily on Lopez’s pre-
Miranda silence. Id. As a result, Lopez’s case can be distin-
guished from other cases where the defendant’s post-Miranda
silence formed the basis of the government’s suggested infer-
ence of guilt. Cf. Velarde-Gomez, 269 F.3d at 1035, and
United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.
1991). By far, the most powerful evidence of Lopez’s actions
was taken from his pre-Miranda silence. If Lopez was in fact
running for his life, it would be reasonable to expect that he
would disclose that fact in the heat of the moment when he
first encountered border agents. That he did not do so sup-
ports a permissible inference, based on pre-Miranda silence,
that he did not disclose that fact because it was not the true
state of affairs. See Beckman, 298 F.3d at 795. Accordingly,
the same inference would follow if the post-Miranda ques-
tions were eliminated from consideration. Adding these infer-
ences to the stipulated evidence of guilt, i.e., Lopez’s
presence in the United States after deportation, and his lack
of citizenship, harmless error is established beyond a reason-
able doubt. See United States v. Pino-Noriega, 189 F.3d 1089,
1099 (9th Cir. 1999) (finding error harmless where there was
“overwhelming other evidence of [defendant-appellant’s]
guilt”).
[6] Consideration of “whether an inference of guilt from
silence was stressed to the jury” is also appropriate. Bushy-
head, 270 F.3d at 913. An inference of guilt is stressed to the
jury where the government “draw[s] a direct inference of guilt
[from defendant’s silence] during its closing argument.”
Velarde-Gomez, 269 F.3d at 1035. Although the prosecutor’s
broad rebuttal argument encompassed Lopez’s post-Miranda
silence, he did not “draw[ ] a direct inference of guilt . . . [or]
use[ ] the testimony about [Lopez’s] [post-Miranda] silence as
[his] principal means of meeting [the government’s] burden.”
Id. Rather, the reference was made contemporaneously with
references to Lopez’s pre-Miranda silence and Lopez’s state-
9128 UNITED STATES v. LOPEZ
ment during his testimony that he wanted to be arrested so he
would not have to spend another night on the streets. This
record does not support a conclusion that post-Miranda
silence was “stressed.” Cf. Whitehead, 200 F.3d at 638-39
(concluding that prosecutor stressed the defendant’s silence
where all references were to the period after defendant
invoked his right to remain silent).
As discussed, the evidence that Lopez faced no duress was
powerfully incriminating.3 Even though the prosecutor imper-
missibly elicited testimony regarding Lopez’s post-Miranda
silence and improperly referenced Lopez’s post-Miranda
silence during closing argument, it was permissible for the
jury to consider Lopez’s pre-arrest, pre-Miranda silence as
substantive evidence of guilt. See Beckman, 298 F.3d at 795.
Therefore, the jury could permissibly consider the powerfully
incriminating admission that Lopez mentioned nothing about
the purported threats to: (1) the border agents whom he
encountered at the Calexico port of entry, (2) the security offi-
cer, or (3) the arresting border agents. The jury could also
consider Lopez’s powerfully incriminating, pre-Miranda
statement, not that he was threatened, but that he “didn’t want
to spend another night in the streets.”
[7] We also examine the length of jury deliberations when
assessing harmlessness. “Longer jury deliberations weigh
3
The evidence of Lopez’s guilt on the 8 U.S.C. § 1326 charge was over-
whelming. Lopez stipulated that he was an alien who had previously been
deported and who did not have consent to re-enter the United States. See
United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir. 2003) (noting
that “[a] deported alien violates 8 U.S.C. § 1326(a)(2) if he ‘enters,
attempts to enter, or is at any time found in’ the United States unless ‘the
Attorney General has expressly consented to such alien’s reapplying for
admission.’ ”) (citation and alteration omitted). See also United States v.
Solorzano-Rivera, 368 F.3d 1073, 1080 (9th Cir. 2004) (noting that jump-
ing over a border fence to escape harassers constituted voluntary entry);
United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1047 (9th Cir. 1990)
(finding harmless error beyond a reasonable doubt in view of overwhelm-
ing evidence of guilt under 8 U.S.C. § 1326).
UNITED STATES v. LOPEZ 9129
against a finding of harmless error because lengthy delibera-
tions suggest a difficult case.” Velarde-Gomez, 269 F.3d at
1036 (citations, alterations and internal quotation marks omit-
ted). In this case, the jury deliberated for approximately two
and one-half hours, suggesting that any error in allowing testi-
mony or commentary on Lopez’s post-arrest silence was
harmless. Cf. id. (noting that the jury deliberated for four
days, thereby supporting an inference that the impermissible
evidence affected jury deliberations).
iii. Due Process
[8] No Doyle error occurs “if the district court promptly
sustains a timely objection to a question concerning post-
arrest silence, instructs the jury to disregard the question, and
gives a curative jury instruction.” Foster, 985 F.2d at 468.
The record reveals two such instances during the trial of this
case.4 The trial court acted promptly to prevent “the inquiry
that Doyle forbids” by “explicitly sustain[ing] an objection to
the . . . question[s] that touched upon [Lopez’s] post-arrest
silence [and] . . . specifically advis[ing] the jury that it should
disregard any questions to which an objection was sustained.”
Greer, 483 U.S. at 764 (footnote reference omitted). Never-
theless, even in the absence of a Doyle violation, the prosecu-
tor’s “attempt[s] to violate the rule of Doyle by asking . . .
improper question[s] in the presence of the jury” constitute
prosecutorial misconduct, and that misconduct warrants rever-
sal where it “may [have] so infec[ted] the trial with unfairness
as to make the resulting conviction a denial of due process.”
4
After being “admonish[ed] . . . not to go into any post-invocation of
the statements,” the prosecutor asked Lopez, “[t]he first time you told any
government agent that you feared for your safety because there was a man
with a knife was yesterday, correct?” The single question was followed by
an objection that was sustained. The court also struck the answer and
admonished the jury to disregard the answer. During re-cross-examination,
the prosecutor asked Lopez “[y]ou told no one on September 17th that
anyone had threatened you with a knife?” The judge sua sponte excluded
that question, which was never answered.
9130 UNITED STATES v. LOPEZ
Id. at 765 (citation omitted). Because the district court sus-
tained the Doyle objections, struck the one answer, admon-
ished the jury to disregard that answer, and instructed the jury
that “questions . . . by lawyers are not evidence” and that “tes-
timony that has been excluded or stricken or that you have
been instructed to disregard is not evidence and must not be
considered[,]” the prosecutor’s improper questions did not
violate Lopez’s due process rights. See id. at 766 (holding that
there was no due process violation occasioned by the prosecu-
tor’s attempt to violate Doyle on closely analogous facts).
B. Jury Instruction—Burden of Proof
Lopez challenges the district court’s jury instruction that
Lopez was “presumed innocent unless and until proved guilty
beyond a reasonable doubt,” claiming that the instruction
unconstitutionally abandoned the presumption of innocence.
“We review de novo a claim that a jury instruction violates
due process,” United States v. Tirouda, 394 F.3d 683, 687 n.1
(9th Cir. 2005), cert. denied, 126 S.Ct. 1462 (2006), (citation
omitted), by “creating an unconstitutional presumption or
inference.” Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir. 1999)
(citation omitted).
[9] “Although the Constitution does not require jury
instructions to contain any specific language, the instructions
must convey both that a defendant is presumed innocent until
proven guilty and that he may only be convicted upon a show-
ing of proof beyond a reasonable doubt.” Gibson v. Ortiz, 387
F.3d 812, 820 (9th Cir. 2004) (citation omitted). “Any jury
instruction that reduces the level of proof necessary for the
Government to carry its burden is plainly inconsistent with
the constitutionally rooted presumption of innocence.” Id.
(alterations, citation and internal quotation marks omitted).
“Any challenged instruction must be considered in light of the
full set of jury instructions and the trial record as a whole.”
Id. at 821 (citation omitted).
UNITED STATES v. LOPEZ 9131
[10] Before trial began, the judge instructed the jury to pre-
sume Lopez “innocent unless and until proved guilty beyond
a reasonable doubt.” At the close of trial, the judge similarly
instructed the jury that Lopez “is presumed to be innocent . . .
[and] [t]he government has the burden of proving every ele-
ment of the charge beyond a reasonable doubt.” He later reit-
erated that “the government must prove each of the . . .
elements [of 8 U.S.C. § 1326(a)] beyond a reasonable doubt.”
We have expressly held that use of the phrase “unless and
until” adequately informs the jury of the presumption of inno-
cence. See United States v. Brady, 579 F.2d 1121, 1131 (9th
Cir. 1978) (upholding instructions that concluded with the
language, “unless and until outweighed by evidence in the
case to the contrary, the law presumes that a person is inno-
cent of crime or wrong”); see also Juan H. v. Allen, 408 F.3d
1262, 1279 (9th Cir. 2005), cert. denied, 126 S.Ct. 1142
(2006), and 126 S.Ct. 1145 (2006). Moreover, when the
instructions are considered as a whole, it is not reasonably
likely that the jury interpreted the “unless and until” phrase as
shifting the burden of proof to Lopez. See Bruce v. Terhune,
376 F.3d 950, 955-56 (9th Cir. 2004) (per curiam) (noting that
there is no error where “the instructions as a whole made clear
to the jury that the prosecution bore the burden of proving
each element of the crime beyond a reasonable doubt”) (cita-
tion omitted).
C. Sentence
For the first time on appeal, Lopez challenges his sentence.
Lopez asserts that the district court erred by imposing a sen-
tence in excess of the two-year maximum set forth in 8 U.S.C.
§ 1326(a). Lopez contends that the enhancement pursuant to
8 U.S.C. § 1326(b) was impermissibly predicated on a prior
felony conviction that was not proved to a jury or admitted by
Lopez. Lopez urges us to conclude that the United States
Supreme Court’s holding in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), has been narrowed by subse-
quent rulings, calling into doubt the enhancement in this case.
9132 UNITED STATES v. LOPEZ
A claim raised for the first time on appeal that a sentence
violates a defendant-appellant’s constitutional rights under
Apprendi v. New Jersey, 530 U.S. 466 (2000), is reviewed for
plain error. United States v. Castillo-Rivera, 244 F.3d 1020,
1024 (9th Cir. 2001). “Under the plain error standard, [Lopez]
must establish an error, that was plain, and that affected his
substantial rights.” United States v. Buckland, 289 F.3d 558,
563 (9th Cir. 2002) (en banc).
Lopez’s challenge to the district court’s finding of the fact
of his prior conviction is foreclosed by our precedent. See
United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir.
2005) (noting that this Court continues to be bound by the
Supreme Court’s holding in Almendarez-Torres), cert. denied,
126 S.Ct. 1911 (2006); see also, United States v. Delaney,
427 F.3d 1224, 1226 (9th Cir. 2005) (stating that “[t]he
Supreme Court has made clear that the fact of a prior convic-
tion need not be proved to a jury beyond a reasonable doubt
or admitted by the defendant to satisfy the Sixth Amend-
ment”).
Lopez also contends that his sentence violates Apprendi
because of the requirement that the removal subsequent to a
prior conviction be admitted by the defendant or proven to a
jury beyond a reasonable doubt. See United States v. Covian-
Sandoval, 462 F.3d 1090, 1097-98 (9th Cir. 2006); see also
United States v. Zepeda-Martinez, 470 F.3d 909, 910 (9th Cir.
2006); United States v. Martinez-Rodriguez, 472 F.3d 1087,
1092 (9th Cir. 2007), as amended.
However, the record in this case reflects that Lopez admit-
ted both the date of his prior conviction (2002) and the date
of his subsequent deportation (2004). Thus, no Apprendi vio-
lation occurred when the district court applied the established
temporal sequence to enhance Lopez’s sentence. See Covian-
Sandoval, 462 F.3d at 1098 (recognizing that if the removal
subsequent to a prior conviction is admitted, no Apprendi vio-
lation occurs).
UNITED STATES v. LOPEZ 9133
[11] We also note the additional fact that only one deporta-
tion was presented to the jury in this case. As we recognized
in Martinez-Rodriguez, 472 F.3d at 1094, in such a circum-
stance, the jury “necessarily found, beyond a reasonable
doubt, that [Lopez] had been previously removed subsequent
to his prior aggravated felony convictions.” Accordingly,
because Lopez admitted the dates of his conviction and subse-
quent removal and because the jury necessarily found the date
of removal, no Apprendi violation occurred in this case.
III. CONCLUSION
The prosecutor impermissibly commented on Lopez’s right
to remain silent in violation of the rule articulated in Doyle.
However, the Doyle error was harmless beyond a reasonable
doubt because of the limited reference to Lopez’s post-
Miranda silence and the overwhelming evidence of Lopez’s
guilt. Although the prosecutor’s questions were impermissi-
ble, Lopez’s due process rights were not violated because the
questions were immediately objected to, and the district court
gave appropriate limiting instructions. It is not reasonably
likely that the jury interpreted the district court’s instruction
that Lopez was “presumed innocent unless and until proved
guilty” as shifting the burden of proof to Lopez. Finally,
because the fact of Lopez’s prior conviction was admitted by
him and necessarily found by the jury, no Apprendi violation
occurred.
CONVICTION AND SENTENCE AFFIRMED.
WARDLAW, Circuit Judge, concurring in part and concur-
ring in the judgment:
I concur in the judgment and in Parts I, II-A, II-B and II-
C(i) of the majority opinion. I disagree with the majority that
Lopez’s testimony can be fairly characterized as an admission
9134 UNITED STATES v. LOPEZ
as to the date of his removal, and the date certainly was not
proved to the jury. Although I would find Apprendi error,
however, I agree that we must affirm Lopez’s sentence
because its imposition was not plain error.
To trigger the sentencing enhancement under 8 U.S.C.
§ 1326(b)(2), “an alien must first be convicted of an aggra-
vated felony, then be removed, and then attempt to reenter, in
that order.” United States v. Covian-Sandoval, 462 F.3d 1090,
1097 (9th Cir. 2006). Under Apprendi v. New Jersey, 530 U.S.
466 (2000), and its progeny, the fact of a prior removal must
be “proved beyond a reasonable doubt to a jury or admitted
by the defendant.” Covian-Sandoval, 462 F.3d at 1098. The
majority finds an admission as to the date of removal from the
following ambiguous exchange:1
Prosecutor: In fact, you had been deported
four times, correct?
Defense counsel: Objection, your honor; 404(b).
The Court: Sustained.
Prosecutor: You testified yesterday and admit-
ted that you had been convicted of
a felony?
Lopez: Yes, sir.
Prosecutor: And at the summer of 2004, you
were in Mexicali?
Lopez: Yes, sir.
1
Lopez had earlier admitted that he was convicted of a felony in 2002.
Therefore, to trigger the sentencing enhancement under § 1326(b)(2),
Lopez would have to have been removed at some point subsequent to that
conviction.
UNITED STATES v. LOPEZ 9135
Prosecutor: Had you been deported from the
United States?
Lopez: Yes, sir.
Lopez responds affirmatively to questions of whether he 1)
was in Mexicali in the summer of 2004, and 2) had been
deported from the United States. His presence in Mexico in
2004 does not establish that he was deported in that year. His
answers would have been the same even if he had been
deported years earlier. Cf. United States v. Lopez, 625 F.2d
889, 897 (9th Cir. 1980) (finding insufficient evidence and
reversing conviction where defendant’s alleged admission
was “[a]t most . . . ambiguous.”).2
The parties stipulated to the fact, but not the date, of
Lopez’s removal. Putting aside the exchange quoted above,
nothing presented to the jury sheds light on whether this
removal was subsequent to his conviction of an aggravated
felony, as required for the § 1326(b)(2) enhancement to apply.
Therefore, I would find Apprendi error because the fact of his
2004 removal was never admitted or proved to the jury. Id.
Because Lopez raises this Apprendi argument for the first
time on appeal, review is under the plain error standard. Id.
at 1093. To prevail, Lopez must therefore establish (1) an
error, (2) that was plain, and (3) that affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993).
Even if those requirements are satisfied, we may exercise our
discretion to correct the forfeited error only if it “ ‘seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’ ” United States v. Cabaccang, 481 F.3d 1176,
1184 (9th Cir. 2007) (quoting United States v. Evans-
Martinez, 448 F.3d 1163, 1166 (9th Cir. 2006)).
2
Despite the defendants’ shared last name, they are unrelated.
9136 UNITED STATES v. LOPEZ
We have already held that “the enhancement of [a § 1326]
sentence, based on the factual finding of a subsequent
removal, constitute[s] plain error.” Covian-Sandoval, 462
F.3d at 1098. However, Lopez’s substantial rights were not
violated, and thus he cannot obtain relief, because he was not
prejudiced “in a manner that affected the outcome of the . . .
proceedings.” United States v. Buckland, 289 F.3d 558, 568
(9th Cir. 2002) (en banc) (internal quotation marks omitted).
In Covian-Sandoval, we noted that the inquiry is “whether it
was clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error,” and
that, “[c]ritically, the defendant bears the burden of raising a
reasonable doubt as to the fact [of prior removal].” 462 F.3d
at 1098.
We held that Covian had not met this burden because he
had “practically concede[d]” that he was removed subsequent
to his conviction for an aggravated felony. Id. Specifically, he
had never objected to the allegation of the subsequent
removal contained in his presentence report. Id. Similarly,
Lopez never objected to the allegation of a 2004 deportation
in his presentence report.
“Most significantly, [Lopez’s] arguments to the sentencing
court effectively conceded that a sentence enhancement under
§ 1326(b) would be appropriate.” Id. Had Lopez not been
removed subsequent to an aggravated felony conviction, the
statutory maximum sentence would have been two years. 8
U.S.C. § 1326(a). But at sentencing, Lopez’s counsel
“agree[d]” with the district court’s tentative sentence of 30
months, a sentence exceeding the § 1326(a) statutory maxi-
mum but consistent with an enhanced sentence under
§ 1326(b). By accepting the district court’s tentative sentence,
Lopez “effectively conceded” the relevant chronological
sequence of conviction and removal. Covian-Sandoval, 462
F.3d at 1098.
UNITED STATES v. LOPEZ 9137
Therefore, Lopez cannot meet his burden of showing that
his substantial rights were violated. We should affirm the sen-
tence because its imposition was not plain error under Olano.