United States v. Donald Khouri , 561 F. App'x 304 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4317
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD DAVE KHOURI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00349-FL-1)
Submitted: March 11, 2014 Decided: March 26, 2014
Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Dave Khouri was convicted of one count of
illegal reentry after deportation in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2012). On appeal, Khouri argues that the
district court erred when it denied his Fed. R. Crim. P. 29
motion for acquittal, contending that the Government failed to
demonstrate his reentry into the United States was voluntary.
We affirm.
We review the denial of a Rule 29 motion de novo.
United States v. Hickman, 626 F.3d 756, 762 (4th Cir. 2010).
When a Rule 29 motion was based on a claim of insufficient
evidence, the verdict must be sustained if “there is substantial
evidence in the record, when viewed in the light most favorable
to the government.” United States v. Jaensch, 665 F.3d 83, 93
(4th Cir. 2011) (internal quotation marks omitted).
“Substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id. (alteration and internal quotation marks omitted).
To obtain a conviction under § 1326, the Government
must establish that: (1) Khouri was an alien who had previously
been arrested and deported; (2) he reentered the United States
voluntarily; and (3) he failed to obtain the express permission
of the Attorney General to do so. United States v. Espinoza-
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Leon, 873 F.2d 743, 746 (4th Cir. 1989); see also 8 U.S.C.
§ 1326(a). Upon review of the record, we conclude that
substantial evidence existed to show that Khouri’s reentry was
voluntary. A Department of Homeland Security agent testified
that there was no evidence that Khouri legally reentered the
country after being deported, that he had sought permission to
reenter, or that he had been kidnapped or otherwise brought to
the United States against his will. Khouri told another agent,
after his arrest while driving from New York to Florida, that he
had returned to the United States more than twenty years before
he was discovered. See United States v. Guzman-Ocampo, 236 F.3d
233, 238 (5th Cir. 2000) (holding distance from a border
supports inference that presence is voluntary); United States v.
Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir. 2000) (observing
rational trier of fact could infer that alien’s reentry was
voluntary from extended time he remained in the country). We
therefore find this evidence sufficient to support his
conviction.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument will not aid the decisional
process.
AFFIRMED
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