United States v. Jonathan Reyes

MEMORANDUM

Defendant-Appellant Jonathan Reyes appeals his conviction and sentence after a jury trial for being an alien found in the United States after previously being deported under 8 U.S.C. § 1326 . We exercise jurisdiction under 28 U.S.C. §§ 1291 , 1294; 18 U.S.C. § 3742 , and affirm.

1. Reyes moved to dismiss the indictment on the grounds his underlying removal order was defective. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987). The district court correctly denied Reyes’s motion to dismiss the indictment because, even if the agency’s violation of his right to a 14-day waiting period before removal violated due process, that violation caused him no prejudice. Reyes has provided no evidentiary basis for his claim that had he gone before an immigration judge he would have had plausible grounds for relief from deportation. See United States v. Arrieta, 224 F.3d 1076, 1082-83 (9th Cir.2000).

2. Reyes argues the district court improperly permitted a government lay witness to identify him at trial based on a photograph. Although that identification was improper because the witness did not have “sufficient contact with the…