and Submitted August 29, 2017 Pasadena, California
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,
Keller (argued), Federal Defenders of San Diego Inc., San
Diego, California, for Defendant-Appellant.
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
Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Nancy Freudenthal, [*] Chief District Judge.
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
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.
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.
FREUDENTHAL, Chief District Judge:
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.
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
FACTS AND PROCEEDINGS BELOW
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.
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.
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.
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 ...