Bahena-Medina
United States v. Bahena-Medina
Opinion
Lead Opinion
MEMORANDUM **
Jose Luis Bahena-Medina appeals his jury-trial conviction and sentence for being a previously deported alien found in the United States in violation of 8 U.S.C. § 1326 (a), (b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291 .
Bahena-Medina contends that his conviction is invalid because the district court did not sua sponte instruct the jury that it had to conclude that his prior deportation was valid. Because Bahena-Medina did not raise this issue below, we review only for plain error. See Fed.R.Crim.P. 52(b); United States v. Ortiz, 362 F.3d 1274, 1276 (9th Cir.2004). This claim fails because Bahena-Medina cannot establish that the district court committed error that was contrary to the law at the time of this appeal. See United States v. Johnson, 520 U.S. 461, 468 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997). Previous decisions of this court and of the Supreme Court have repeatedly concluded that the validity of a prior deportation is not an element of a § 1326 offense. See, e.g., United States v. Mendozar-Lopez, 481 U.S. 828, 834-35 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987); United States v. Alvarado-Delgado, 98 F.3d 492 (9th Cir.1996).