United States v. Nefi Rizo-Reyes , 590 F. App'x 442 ( 2015 )

Case: 14-40316 Document: 00512905503 Page: 1 Date Filed: 01/16/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40316
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 16, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
NEFI RIZO-REYES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-1308-1
Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
Nefi Rizo-Reyes was convicted by a jury of illegal reentry following prior
deportation and was sentenced below the advisory guidelines range to 57
months of imprisonment. He maintains that the evidence was insufficient to
support his conviction. Because he preserved his challenge to the sufficiency
of the evidence, our review is de novo. See United States v. Frye, 489 F.3d 201,
207 (5th Cir. 2007).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-40316 Document: 00512905503 Page: 2 Date Filed: 01/16/2015
No. 14-40316
Rizo-Reyes challenges whether the Government proved that he was an
alien at the time of his illegal reentry. He argues that the sole issue is whether
the evidence established that his parents were married before his birth, a fact
that would render him subject to more exacting residency requirements that
he cannot satisfy. See 8 U.S.C. §§ 1401, 1409. Rizo-Reyes maintains that the
evidence equally supported that his parents were not married at the time of
his birth and, thus, he is entitled to an acquittal.
When the evidence is viewed in the light most favorable to the
Government, a rational jury could have found that it was sufficient to uphold
Rizo-Reyes’s conviction. See United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir.) (en banc), cert. denied, 135 S. Ct. 170 (2014); United States v.
Terrell, 700 F.3d 755, 760 (5th Cir. 2012), cert. denied, 133 S. Ct. 1834 (2013).
The Government presented a marriage certificate showing that Rizo-Reyes’s
parents were married in Mexico in 1974, which preceded Rizo-Reyes’s birth in
1978. While Rizo-Reyes offered contrary evidence suggesting that his parents
were not married at the time of his birth, the record supports, and we must
presume, that the jury resolved any conflict in favor of the Government. See
Jackson v. Virginia, 443 U.S. 307, 326 (1979). We must defer to the jury’s
finding and its construction of the evidence. Id. Rizo-Reyes’s reliance on the
“equipoise rule” is misguided because we have abandoned that standard in
evaluating sufficiency claims. See Vargas-Ocampo, 747 F.3d at 301-02.
Accordingly, the judgment of the district court is AFFIRMED.
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