Pena-Lopez

MEMORANDUM *

Defendant-appellant Evelia Pena-Lopez, a citizen of Mexico, was convicted by a jury of illegal reentry after deportation, in violation of 8 U.S.C. § 1326 (a). Pena-Lopez argues that the district court erred in failing to instruct the jury that, in order to convict, it must find that her reentry into the United States was voluntary. She also contends that there was insufficient evidence to support her conviction. Finally, she argues that the district court mistakenly believed that it lacked discretion to grant her a downward departure from her sentencing guideline range. We affirm her conviction but vacate her sentence and remand for resentencing.

In United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.2000), we held that “the voluntariness of the return is an element of the crime [under 8 U.S.C. § 1326 ] and, as such, must be proved beyond a reasonable doubt by the prosecution.” Therefore, the district court was required to instruct the jury on the issue of voluntariness, and its failure to do so was erroneous. See Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir.1998) (noting that due process requires that the jury be instructed on each element of an…