Opinion
Argued and Submitted Oct. 10, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted after bench trial in the United States District Court for the Southern District of California, Gordon Thompson, Senior Judge, of being a deported alien found in the United States, and he appealed. The Court of Appeals held that: (1) there was no need to plead voluntary entry in the indictment; (2) conviction was supported by evidence that defendant was found at least one-half mile from the border; and (3) existence of obvious error in date of document was not fatal to the sufficiency of the government's proof of identity of defendant.
Affirmed.
Page 989.
Appeal from the United States District Court for the Southern District of California, Gordon Thompson, Senior Judge, Presiding.
Patrick K. O'Toole, AUSA, Kyle W. Hoffman, Patricia Guerrero, USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Ezekiel E. Cortez, Esq., Law Office of Ezekiel E. Cortez, San Diego, CA, for Defendant-Appellant.
Before REINHARDT, FERNANDEZ, and RAWLINSON, Circuit Judges.
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 Circuit Rule 36-3.
Defendant/Appellant Rico-Gonzalez's appeal from his bench trial conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 fails.
1. In a "found in" case, there is no need to plead voluntary entry in the indictment absent some evidence of an involuntary entry. See United States v. Parga-Rosas, 238 F.3d 1209, 1214 (9th Cir.), cert. denied, 534 U.S. 942, 122 S.Ct. 319, 151 L.Ed.2d 238 (2001).
2. The Government presented sufficient evidence that Rico-Gonzalez voluntarily entered the United States by showing that Rico-Gonzalez was found at least one-half mile from the border, and there was no evidence that Rico-Gonzalez's entry was other than voluntary. "[E]vidence that a deported alien was found in the United States anywhere other than at the border suffices, in the absence of any showing by the defendant that the entry was in fact involuntary, for conviction on a 'found in' offense." Parga-Rosas, 238 F.3d at 1211.
3. The Government presented sufficient evidence to prove that Rico-Gonzalez was the same person who was previously deported. The existence of an obvious error in the date of one of the documents is not fatal to the sufficiency of the government's proof of identity. See United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.2000), cert. denied, 532 U.S. 953, 121 S.Ct. 1427, 149 L.Ed.2d 366 (2001).
AFFIRMED.