Opinion
No. 09-10196.
Argued and Submitted March 10, 2010.
Filed March 15, 2010.
Monte Cress Clausen, Assistant U.S., USTU-Office of the U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.
Saul M. Huerta, Jr., Assistant Federal Public Defender, FPDAZ-Federal Public Defender's Office, Tucson, AZ, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, District Judge, Presiding. D.C. No. 4:08-CR-00040-FRZ-CRP-1.
Before: FERNANDEZ, GRABER, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Defendant Victor Canedo-Reyna appeals his conviction for illegal reentry in violation of 8 U.S.C. § 1326. For the following reasons, we affirm.
1. Reviewing de novo, United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992) (en banc), we hold that the district court properly denied Defendant's collateral attack on the 1985 deportation order. The court correctly held that Defendant had not exhausted his administrative remedies. See 8 U.S.C. § 1326(d)(1) (requiring exhaustion of administrative remedies). As the government concedes, Defendant could still file a motion to reopen, but he has not done so.
2. Reviewing de novo, United States v. Mosley, 465 F.3d 412, 414-15 (9th Cir. 2006), we hold that sufficient evidence supported the conviction. A reasonable juror could have concluded that Defendant was free from official restraint in the five-day period between his entry into the country and his interview, many miles from the border, with the testifying government agent. See United States v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir. 2005) (reaching the same conclusion on similar facts).