United States v. Silviano Marcelino-Garcia , 388 F. App'x 637 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30299
Plaintiff - Appellee, D.C. No. 4:08-cr-00245-BLW-1
v.
MEMORANDUM*
SILVIANO MARCELINO-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted July 15, 2010
Portland, Oregon
Before: GOODWIN, PREGERSON, and WARDLAW, Circuit Judges.
Silviano Marcelino-Garcia appeals his conviction for illegal reentry after a
prior deportation under 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291 and we affirm. Because the parties are familiar with the facts, we do not
restate them here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.
We review de novo claims of insufficient evidence. United States v.
Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (citing United States v. Shipsey, 363
F.3d 962, 971 n.8 (9th Cir. 2004)). Evidence is sufficient to support a conviction
if, “reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Contreras, 63 F.3d 852, 857 (9th Cir. 1995)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).
In this case, sufficient evidence supports the jury’s conclusion that the
Government proved, beyond a reasonable doubt, that Marcelino-Garcia physically
left the United States. The Government submitted into evidence a warrant of
removal, which this court has repeatedly found to be sufficient evidence to
establish physical removal. See, e.g., United States v. Salazar-Lopez, 506 F.3d
748, 755 (9th Cir. 2007); United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th
Cir. 2006); United States v. Bahena-Cardenas, 411 F.3d 1067, 1074 (9th Cir.
2005); United States v. Contreras, 63 F.3d 852, 857 (9th Cir. 1995). Agent
Pedregon testified that after an immigration officer witnessed a deportee’s exit
through the gate to the Paseo Del Norte Bridge and signed that deportee’s warrant,
it was possible that a deportee could avoid physically crossing the border. Agent
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Pedregon emphasized that the chances of this happening were remote. Therefore,
Agent Pedregon’s testimony does not undermine the sufficiency of the warrant of
removal.
II.
We review a defendant’s claim, raised for the first time on appeal, that the
government improperly shifted the burden of proof to the defendant for plain error.
United States v. Vaandering, 50 F.3d 696, 701 (9th Cir. 1995). In this case, the
Government expressly stated during its closing argument that it, and not
Marcelino-Garcia, bore the burden of proof to show that Marcelino-Garcia had
physically departed from the United States. The Government then highlighted
Marcelino-Garcia’s lack of evidence to support his claim that he had not been
physically removed from the United States. The Government may comment on the
weaknesses of a defendant’s case without impermissibly shifting the burden to that
defendant. Id. at 701-02. In this case, the Government did not shift the burden of
proof to Marcelino-Garcia.
AFFIRMED.
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