U.S. v. Perez-Moreno

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Armando PEREZ-MORENO…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 5, 2002

52 F. App'x 68 (9th Cir. 2002)

Opinion

52 Fed.Appx. 68 (9th Cir. 2002) UNITED STATES of America, Plaintiff-Appellee, v. Armando PEREZ-MORENO, Defendant-Appellant. No. 01-50583. D.C. No. CR-00-02601-H. United States Court of Appeals, Ninth Circuit. December 5, 2002

Submitted December 2, 2002. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding.

Before GOODWIN, TROTT, and GRABER, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Armando Perez-Moreno appeals his jury trial conviction and 51-month sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Perez-Moreno's first contention is that the district court erred by failing to give two requested jury instructions elaborating on the definition of "alien" and "entry", based on its determination that the evidence did not support the instructions. We review for an abuse of discretion, United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir.2001), cert. denied, 535 U.S. 1067, 122 S.Ct. 1939, 152 L.Ed.2d 843 (2002), and we find none. See United States v. Sotelo, 109 F.3d 1446, 1447-48 (9th Cir.1997) (concluding that the district court did not err by refusing to instruct the jury on the definition of "national" where there was no evidence to support such a finding); United States v. Castellanos-Garcia, 270 F.3d at 777 (concluding that the district court did not err by refusing to instruct on an official restraint theory when there was no evidence to support it).

Perez-Moreno's second contention is that the district court improperly enhanced his sentence on the basis of a prior aggravated felony conviction that was neither admitted or charged in the indictment, nor proven beyond a reasonable doubt. This argument is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

AFFIRMED.