United States v. Roberto Lopez

ORDER AND AMENDED OPINION

ORDER

The Opinion filed on April 2, 2014 is hereby amended, and an amended opinion is filed concurrently with this order.

Appellant’s petition for panel rehearing is denied.

No future petitions for rehearing or petitions for rehearing en banc will be entertained. The mandate shall issue forthwith.

IT IS SO ORDERED.

OPINION

Roberto Lopez Francisco (“Lopez”) appeals his conviction following a jury trial for being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326 . We agree with the district court that 8 U.S.C. § 1326 does not require the government to prove the existence of an order of deportation as an element of the crime in cases where the defendant has been deported or removed. We affirm Lopez’s conviction despite the erroneous admission of lay opinion testimony by a key government witness because Lopez fails to show a reasonable probability that the exclusion of that testimony would have affected the outcome of his trial; nor does he demonstrate that the remaining evidence was legally insufficient to support the jury’s verdict. We also conclude that the district court did not abuse its discretion in denying…