Rapeta-Garcia

MEMORANDUM **

Efren Rapeta-Garcia appeals from his jury conviction and sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

A. Background

A one-count indictment charged RapetaGarcia with being a deported alien “found in the United States” in violation of 8 U.S.C. § 1326 (a). 1 Rapeta-Garcia stipulated to his Mexican citizenship and that he was previously deported. A jury convicted Rapeta-Garcia of the single count. The district court sentenced Rapeta-Garcia to 15 months’ custody and RapetaGarcia timely appealed.

B. Analysis

1. Jury Instructions

Rapeta-Garcia argues that the jury instructions 2 misstated the element of consent because the instructions failed to distinguish between “consent to re-enter” and “consent to re-apply for admission.” We have previously held that an instruction identical to the one given at Rapeta-Garcia’s trial did not misstate an element of the crime. United States v. Cervantes-Flores, 421 F.3d 825, 834 (9th Cir.2005) (“While ambiguous and perhaps in need of clarification, the instruction does not misstate the element of the crime.”). The…