Martinez-Ceballoz

MEMORANDUM *

Adrian Martinez-Ceballoz was convicted after a jury trial for unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326 (a) and was sentenced to a term of 92 months. Martinez-Ceballoz appeals his conviction and sentencing on several grounds. The facts and prior proceedings are known to the parties; they are not restated herein except as necessary.

I

Martinez-Ceballoz first argues that the district court committed reversible error by failing to instruct the jury that a defendant must “voluntarily” reenter the United *674 States in order to violate 8 U.S.C. § 1326 (a). Because Martinez-Ceballoz did not object to the jury instructions at the time of trial, we review only for plain error. See Jones v. United States, 527 U.S. 373, 388 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999).

In United States v. Quintana-Torres, 235 F.3d 1197 (9th Cir.2000), we held that “the voluntariness of the return is an element of [ 8 U.S.C. § 1326 (a) ] and, as such, must be proved beyond a reasonable doubt by the prosecution.” Id. at 1200 . Nevertheless, because the defendant was found well within the United States border in Laughlin, Nevada and never claimed that he involuntarily…