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United States v. Hernandez-Quintania

United States Court of Appeals, Ninth Circuit

November 3, 2017

United States of America, Plaintiff-Appellee,
v.
Pedro Hernandez-Quintania, Defendant-Appellant.

          Argued and Submitted August 29, 2017 Pasadena, California

         Appeal from the United States District Court for the Southern District of California Nos. 3:14-cr-01225-LAB-1 3:16-cr-00132-LAB-1, Larry A. Burns, District Judge, Presiding

          Doug Keller (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

          Colin M. McDonald (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; Alana W. Robinson, Acting United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: William A. Fletcher and Sandra S. Ikuta, Circuit Judges, and Nancy Freudenthal, [*] Chief District Judge.

         SUMMARY [**]

         Criminal Law

         The panel affirmed (1) a conviction under 18 U.S.C. § 1326 for reentry by a previously-deported alien without the express consent of the Attorney General to reapply for admission, and (2) the resulting revocation of the defendant's supervised release from a prior illegal reentry conviction.

         The panel rejected the defendant's contention that the government failed to prove he did not obtain the Attorney General's consent to reapply for admission to entering the United States. The panel held that § 1326 requires a deported alien to receive the Attorney General's consent to reapply for admission after his or her most recent deportation, regardless of whether he or she had prior permission to reapply, and that the evidence was sufficient for the jury to find that the defendant was in the United States without such consent.

         The panel held that the district court properly denied the defendant's Batson challenge asserting that the government struck two jurors based on their ethnicity. The panel held that the totality of the circumstances does not raise an inference that the government's challenges were racially motivated, that the defendant failed to make a prima facie case of discrimination, and that the district court's comments regarding the possible reasons for striking the jurors did not constitute structural error.

          OPINION

          FREUDENTHAL, Chief District Judge:

         Hernandez-Quintania appeals from a jury conviction under 8 U.S.C. § 1326, which makes it a felony for an alien who has previously been deported to reenter the United States without the express consent of the Attorney General to reapply for admission. As a result of the conviction, the district court also found Hernandez-Quintania violated the terms of his supervised release from a prior 2014 illegal reentry conviction.

         We find there was substantial evidence to support Hernandez-Quintania's conviction and that the district court properly denied Hernandez-Quintania's Batson challenge. We therefore affirm Hernandez-Quintania's conviction and supervised release revocation.

          FACTS AND PROCEEDINGS BELOW

         Hernandez-Quintania is a Mexican citizen. In 2014, he pleaded guilty to being a removed alien found in the United States in violation of 8 U.S.C. § 1326. For that conviction he received a ten-month prison sentence and three years of supervised release. The conditions of his supervised release required he not "commit another federal, state or local crime." After Hernandez-Quintania finished serving his prison sentence, he was removed to Mexico in April of 2015.

         On January 9, 2016, Border Patrol Agent Amadeo Castillo picked up Hernandez-Quintania in Dulzura, California. Agent Castillo found Hernandez-Quintania lying down on his stomach at the corner of an intersection. Hernandez-Quintania told Agent Castillo he was a Mexican citizen. Hernandez-Quintania did not have any documents allowing him to legally enter or remain in the United States.

         The government charged Hernandez-Quintania with illegal reentry of a removed alien in violation of 8 U.S.C. § 1326. Hernandez-Quintania pleaded not guilty and proceeded to a jury trial on April 5, 2016. During trial, the government introduced evidence that Hernandez-Quintania was deported on July 23, 2013 and again on April 15, 2015. The government also introduced evidence that Hernandez-Quintania had not received permission for admission since his last deportation in 2015. The jury returned a guilty verdict. As a result of his conviction, the district court also revoked Hernandez-Quintania's supervised release because he committed another federal crime while on supervision.

         Hernandez-Quintania timely appealed, challenging the sufficiency of the evidence that he reentered the United States without permission. Hernandez-Quintania also claims the district court erred in determining he failed to establish a prima facie case of purposeful discrimination in his Batson challenge. The only challenge to the revocation of ...


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