Gauna-Mendoza

MEMORANDUM *

Defendant-appellant Jose Ramon Gauna-Mendoza appeals his jury conviction of illegal re-entry after deportation in violation of 8 U.S.C. § 1326 (a), with a § 1326(b)(2) sentencing enhancement. We affirm. As the parties are familiar with the facts, procedural history, and arguments, we cite them only as necessary.

The superceding indictment in this case erroneously alleged three separate and distinct crimes in a single count. See United States v. Riverar-Relle, 333 F.3d 914, 919 (9th Cir.), cert. denied — U.S. -, 124 S.Ct. 459 , 157 L.Ed.2d 331 (2003). Thus, the indictment was duplicitous. See United States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir.2001). That problem was cured by the government’s election to proceed solely on the “found in” charge, however. Id. at 915 .

Despite the government’s election, the district court instructed the jury that the third element of the offense was that the “defendant entered or was found in the United States.” We review the court’s instruction for plain error because GaunaMendoza did not object. See Fed. R.Crim.P. 52(b). “Plain error is found only where there is ‘(1) error, (2) that was clear or obvious, (3) that affected…