United States v. Gumercindo Salazar-Gonzalez

ORDER AND AMENDED OPINION

ORDER

DefendanU-Appellant’s petition for panel rehearing, filed June 5, 2006, is GRANTED. The disposition filed on April 21, 2006 is amended and replaced by the disposition filed concurrently with this order. No further petitions for rehearing will be entertained by this court.

OPINION

Defendant-appellant Gumercindo Salazar-Gonzalez (“Salazar-Gonzalez”) appeals his conviction for being found in the United States without the consent of the Attorney General in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 . At trial, the district court refused to give Salazar-Gonzalez’s proposed jury instruction requiring the government to prove beyond a reasonable doubt that Salazar-Gonzalez “voluntarily reentered” and “knew he was in” the United States. The district court concluded that Salazar-Gonzalez presented no evidence to support a voluntariness instruction, but did not separately address the knowledge instruction. Although this was in error, we affirm the district court nonetheless because it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error[.]” Neder v. United States,…

concurring in part and in the judgment:

I concur in Parts I, II, and III.C, and in the judgment on Parts III.A and B. I part company with respect to the need to “clarify” what instructions should be given in “found in” cases for, as the district court correctly held, there was no evidence to support an instruction that Salazar-Gonzalez was not knowingly and voluntarily found in the United States. He was found with eleven others, who also had no permission to be here, hiding in a bush 100 yards away from the border having climbed a fence that ranged from four to eleven feet at its lowest point, and offered no evidence that he didn’t know he was in this country. 1 A district court “determination that a factual foundation does not exist to support a jury instruction proposed by the defense” is reviewed under the deferential abuse of discretion standard. United States v. Castellanos-Garda, 270 F.3d 773, 775 (9th Cir.2001). The court acted well within its discretion in ruling that “[t]here was no evidence whatsoever that would bring that [Salazar-Gonzalez’s proposed instruction] into play.” This is the beginning and end of it. The district court had no obligation to give…

458 F.3d 851 UNITED STATES of America, Plaintiff-Appellee, v. Gumercindo SALAZAR-GONZALEZ, Defendant-Appellant. No. 04-50411. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 2005. Opinion Filed April 21, 2006. Amended Opinion Filed August 15, 2006. Vincent J. Brunkow, Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Shanna L. Dougherty, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; M. James Lorenz, District Judge, Presiding. D.C. No. CR-04-00182-MJL. Before BETTY B. FLETCHER, PAMELA A. RYMER and RAYMOND C. FISHER, Circuit Judges. ORDER AND AMENDED OPINION FISHER, Circuit Judge. ORDER 1 Defendant-Appellant's petition for panel rehearing, filed June 5, 2006, is GRANTED. The disposition filed on April 21, 2006 is amended and replaced by the disposition filed concurrently with this order. No further petitions for rehearing will be entertained by this court. OPINION 2 Defendant-appellant Gumercindo Salazar-Gonzalez ("Salazar-Gonzalez") appeals his conviction for being found in the United…