103 F.3d 141
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Juan CARDENAS-BACA, Defendant-Appellant.
No. 95-50398.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 5, 1996.*
Submission Deferred Aug. 8, 1996.
Resubmitted Nov. 18, 1996.
Decided Nov. 20, 1996.
Before: FLETCHER and TASHIMA, Circuit Judges, and RESTANI,** United States Court of International Trade Judge.
MEMORANDUM***
Petitioner Cardenas-Baca appeals from his jury conviction for unlawful reentry of an alien deported subsequent to his conviction of an aggravated felony, 8 U.S.C. §§ 1326(a) and (b)(2). We affirm.
Ruling on a Government motion in limine brought before trial, the district court held that Cardenas-Baca's prior deportation was lawful. Cardenas-Baca argues that because lawfulness of the prior deportation is an element of the offense it should have been decided by the jury, not the judge.1 He relies on United States v. Gaudin, 115 S.Ct. 2310, 2312 (1995), which holds that the sixth amendment requires that the jury determine whether the defendant is guilty of each of the elements of the offense.
Although he accurately states the holding of Gaudin, he is wrong in his assertion that the lawfulness of the deportation is an element of the crime with which he is charged. "[L]awfulness of the prior deportation is not an element of the offense under § 1326." United States v. Alvarado-Delgado, No. 94-50594 Slip Op. 13753, 13757 (9th Cir. Oct. 18, 1996) (en banc). Cardenas-Baca was not entitled to have the jury decide this issue. We therefore AFFIRM his conviction.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
Cardenas-Baca does not ask the panel to review the district court's conclusion that the prior deportation was lawful