United States v. Pablo Ayala-Yupit

MEMORANDUM

Pablo Ayala-Yupit appeals his conviction, following a bench trial, for felony illegal entry in violation of 8 U.S.C. § 1325 and attempted illegal re-entry in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part and vacate in part.

I

Ayala contends that the government did not introduce sufficient evidence to sustain his convictions.

The parties dispute whether a challenge to the sufficiency of the evidence was preserved, but “plain-error review of a sufficiency-of-the-evidenee claim is only ‘theoretically more stringent’ than the standard for a preserved claim.” United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (quoting United States v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009)). Review of Ayala’s claim is governed by Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). See Flyer, 633 F.3d at 917 .

II

A

Ayala first argues that the government failed to introduce sufficient evidence to sustain the felony § 1325 conviction.

A “previous conviction for illegal entry is an element of the felony offense of § 1325.” United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160 (9th Cir. 2004)…