United States v. Cisneros-Garza ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 00-21046
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ADAN CISNEROS-GARZA,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. H-00-CR-246-1
    --------------------
    October 25, 2001
    Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Adan Cisneros-Garza was convicted of illegal reentry into the
    United States in violation of 
    8 U.S.C. § 1326
     after being deported
    because of an aggravated felony conviction.       He was sentenced to
    fifty-six months in prison followed by three years of supervised
    release. The jury found him not guilty of making a false statement
    to obtain a passport. Cisneros appeals his conviction and sentence
    on several grounds.
    Cisneros first argues that his conviction should be reversed
    because the district court improperly admitted evidence of his
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined
    that this opinion should not be published and is not precedent
    except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    No. 00-21046
    -2-
    prior convictions.   After ruling that the evidence regarding his
    prior convictions should have been excluded, the district court
    strongly admonished the jury to disregard the convictions except to
    the extent that they showed that Cisneros was in the United States
    at those times.   The district court renewed this admonition in the
    jury instruction by ordering the jury not to consider the stricken
    testimony and reminding the jury to base its verdict solely on
    legally admissible evidence.
    The jury’s verdicts indicate that it did, in fact, disregard
    the improperly admitted evidence.       The jury found Cisneros not
    guilty of lying to obtain a passport.    This is the count that goes
    to Cisneros’s credibility.    If Cisneros is correct in stating that
    the jury   considered the excluded evidence, it probably would not
    have believed his testimony that he never lied to obtain a passport
    and would have assumed that Cisneros also committed that crime.
    Contrary to Cisneros’s assertion, the credibility of his
    testimony that he was born in Brownsville, Texas was irrelevant to
    his conviction for illegal reentry.         Cisneros admitted that he
    learned that he was born in Brownsville from a man who lived on the
    ranch where Cisneros was raised.     Because Cisneros did not have,
    and could not have had, any personal knowledge that he was born in
    Brownsville, his credibility was not in question on this issue.
    Furthermore, Cisneros’s mother, Maria Garza Moya, testified that
    she went to Brownsville with her husband in September 1950 for an
    unknown reason and stayed in a house “with some people of his.”
    Moya stated that while she was in Brownsville, she gave birth to
    Cisneros. As soon as they were able, she and her husband took
    No. 00-21046
    -3-
    Cisneros back to Mexico and never applied for a birth certificate
    in the United States.       Moya testified that she never told Cisneros
    that he was born in Brownsville.
    Thus,   the   court’s   instruction     adequately     neutralized     any
    potential prejudice from introducing the prior convictions.                    In
    light of the record as a whole, there is no reasonable likelihood
    that the jury was prejudiced by the improperly admitted evidence of
    Cisneros’s prior convictions.          Therefore, any error caused by the
    erroneous admission of that evidence was harmless.                   See United
    States v. Asibor, 
    109 F.3d 1023
    , 1032 (5th Cir. 1997).
    Cisneros next argues that the district court erred in refusing
    to grant him a continuance to authenticate documents upon which his
    defense   was    based.      We    review    the   denial   of   a   motion   for
    continuance for an abuse of discretion.            United States v. Davis, 
    61 F.3d 291
    ,    298   (5th   Cir.    1995).     “[T]rial     judges   have   broad
    discretion in deciding whether to grant continuances.”                      United
    States v. Correa-Ventura, 
    6 F.3d 1070
    , 1074 (5th Cir. 1993).
    Because our review of the record indicates that the district
    court’s ruling was neither arbitrary nor unreasonable, it is
    affirmed.      United States v. Hughey, 
    147 F.3d 423
    , 431 (5th Cir.
    1998).
    Cisneros further argues that the district court should have
    instructed the jury that his reasonable but mistaken belief that he
    was entitled to enter the United States was a defense to the
    illegal reentry charge.        He concedes that this issue is foreclosed
    by this court’s precedent in United States v. Trevino-Martinez, 86
    No. 00-21046
    -4-
    F.3d 65, 68 (5th Cir. 1996), but raises it to preserve it for
    further review.
    Finally, Cisneros points out that the sentence imposed orally
    by the district court conflicts with the written judgment.     The
    district court orally imposed a three-year term of supervised
    release, but the written judgment reflects a four-year term.       A
    three-year term of supervised release is the maximum allowed for a
    conviction under 
    8 U.S.C. § 1326
    , a class C felony.   See 
    18 U.S.C. §§ 3559
    (a)(3) and 3582(b)(2). The sentence pronounced by the court
    controls over the sentence in the written judgment.   United States
    v. Martinez, 
    250 F.3d 941
    , 942 (5th Cir. 2001).       This case is
    remanded for the limited purpose of allowing the district court to
    amend its written judgment to conform to its oral sentence.   
    Id.
    CONVICTION AFFIRMED.   REMANDED FOR CORRECTION OF JUDGMENT.