UNITED STATES of America, Plaintiff-Appellee, v. Juan Jose ALVARADO-DELGADO, Defendant-Appellant

I.

Alvarado-Delgado was deported from the United States in 1991. In 1994, he was apprehended in the United States and indicted under 8 U.S.C. § 1326 , which provides that any alien who has previously been deported and thereafter improperly reenters or is found in the United States without the Attorney General’s consent can be fined and imprisoned. Alvarado-Delgado argued that because he had not been informed of his right to a deportation hearing, his waiver of this right and therefore his deportation were invalid. The district court determined at a pre-trial hearing that Alvarado-Delgado’s prior deportation was lawful and barred him from presenting evidence on that issue at trial. Alvarado-Delgado failed to show the alleged procedural error in his prior deportation proceeding prejudiced him. We therefore affirm his conviction.

II.

Alvarado-Delgado argues the lawfulness of his prior deportation should have been submitted to the jury because this Court has held that lawfulness is an element of the offense § 1326, United States v. Ibarra, 3 F.3d 1333, 1334 (9th Cir.1993), and the Supreme Court has held that the jury must determine whether the defendant is guilty of every element…