UNITED STATES of America, Plaintiff-Appellee, v. Osvaldo CONTRERAS-CONTRERAS, Defendant-Appellant

We must decide whether a prosecutor’s volunteered reason for exercising a peremp tory challenge against an African-American enables a defendant to preserve the issue for appeal, notwithstanding the defense attorney’s failure to object during voir dire or trial.

I

Osvaldo Contreras-Contreras, a citizen of Mexico, appeals his conviction for reentering the United States after deportation in violation of 8 U.S.C. § 1326 (b)(2).

Contreras-Contreras’ claim arises under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). To prevail on a Batson claim, the defendant must establish a prima facie case of purposeful discrimination in the jury selection process. United States v. Thompson, 827 F.2d 1254, 1256-57 (9th Cir.1987). The burden then shifts to the prosecutor to present a neutral explanation for the challenges. Id. at 1257 .

In the course of voir dire before trial in this ease, the prosecutor volunteered to the district court that he had a Batson problem because he intended to exercise his peremptory challenges against two African-American jurors. The prosecutor stated that “I have case notes specifically with regard to Cheryl Cathey — where in another case…