Cruz

MEMORANDUM *

Appellant Flaviano Betancourt Cruz (“Cruz”) appeals his conviction of being found in the United States without permission after being previously deported, in violation of 8 U.S.C. § 1326 , and his subsequent sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Cruz raises three issues on appeal. First, Cruz argues that the district court erred in striking for cause, on its own motion, five veniremembers who expressed either difficulty in applying the law, or sympathy for people in Cruz’s position. The district court struck the veniremembers based on their statements during the voir dire. Therefore, the district court determined that they had actual bias, which is reviewed for abuse of discretion. See United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir.2000). We need not determine whether the district court abused its discretion in improperly removing the five veniremembers because even if it did so, we cannot say that the dismissals “presumptively resulted in a prejudiced jury panel.” United States v. Padilla-Mendoza, 157 F.3d 730, 734 (9th Cir.1998). Cruz “presented no evidence that any of the jurors that found him guilty were unable or…

dissenting.

I disagree with the majority’s conclusion that the district court did not abuse its discretion in dismissing five jurors for cause on its own motion. Although I agree that Cruz “presented no evidence that any of the jurors that found him guilty were unable or unwilling to properly perform their duties,” United States v. Padilla-Mendoza, 157 F.3d 730, 734 (9th Cir. 1998), I do not find that such a showing is required under the circumstances. Accordingly, I would reverse the district court’s judgment of conviction.

The district court abused its discretion in dismissing at least two jurors without inquiring as to whether their expressed sympathy would impede their ability to serve impartially. One of the jurors stated specifically that although “it would be tough for [her] if [Cruz] came back to the country to see his kids,” she “would try to put aside [her] sympathies.” The other juror stated that she could empathize with Cruz, because her family had been in a similar situation, but never stated that she would not be able to serve as an impartial juror. In both instances, the district court did not further question the jurors “as to their ability to faithfully and…