United States v. Omar Silva-Nava , 243 F. App'x 589 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 28, 2007
No. 07-10989 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00185-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR SILVA-NAVA,
a.k.a. Rene Rodriguez,
a.k.a. John Doe,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 28, 2007)
Before ANDERSON, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Omar Silva-Nava appeals his conviction for false impersonation of a United
States citizen. See 18 U.S.C. § 911. Silva-Nava argues for the first time on appeal
that section 911 violates the First Amendment. We affirm.
Where no timely objection was made in the district court, we review for
plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Plain error consists of (1) error (2) that is plain (3) and affects substantial rights.
United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). “[A]n error
cannot meet the ‘plain’ requirement of the plain error rule if it is not ‘clear under
current law.’” United States v. White, 416 F.3d 1313, 1319 (11th Cir. 2005)
(citation omitted).
Siva-Nava contends that the district court plainly erred when it approved his
conviction for false impersonation of a United States citizen because section 911 is
overbroad and unconstitutional on its face. The challenged language of section
911 provides, “Whoever falsely and willfully represents himself to be a citizen of
the United States shall be fined under this title or imprisoned not more than three
years, or both.” 18 U.S.C. § 911. Silva-Nova’s argument fails.
Neither this Court nor the Supreme Court has held that section 911 is
overbroad. Our sister circuits that have addressed overbreadth challenges to the
statutory language of section 911 have uniformly rejected the challenges. See
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United States v. Esparza-Ponce, 193 F.3d 1133, 1137 (9th Cir. 1999); United
States v. Achtner, 144 F.2d 49, 52 (2d Cir. 1944) (rejecting challenge to
predecessor statute, 8 U.S.C. § 746(a)(18)). The district court did not plainly err.
Silva-Nava’s conviction is
AFFIRMED.
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