FILED

NOT FOR PUBLICATION

SEP 12 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1507

Plaintiff-Appellee, D.C. No. 3:19-cr-02883-BLM-BTM-1 v.

ROBERTO RIOS-BAUTISTA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding

Submitted September 10, 2024** Pasadena, California

Before: IKUTA and FRIEDLAND, Circuit Judges, and HSU,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Wesley L. Hsu, United States District Judge for the Central District of California, sitting by designation. Roberto Rios-Bautista appeals his conviction for misdemeanor attempted

illegal entry by an alien in violation of 8 U.S.C. § 1325(a)(1). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

We need not decide whether the magistrate judge erred in admitting

evidence of Rios-Bautista’s prior apprehension and removal, because even if there

were an error, it would be harmless. As the magistrate judge concluded, “there was

overwhelming evidence against the defendant.” A border patrol agent testified that

he located Rios-Bautista in a sparsely populated area approximately 20 miles away

from the closest port of entry, and approximately one mile away from a gap in the

20-foot tall fence that runs across the U.S.-Mexico border. Rios-Bautista admitted

that he was not a U.S. citizen and that he had illegally crossed the border.

Therefore, in light of the circumstances of Rios-Bautista’s July 3 arrest, “it is more

probable than not that the erroneous admission of the [other act] evidence did not

affect” the verdict. United States v. Hill, 953 F.2d 452, 458 (9th Cir. 1991).

AFFIRMED.

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