Duarte-Reyes

*733 MEMORANDUM **

Isidro Duarte-Reyes (“Duarte-Reyes”) appeals his conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 and the resulting 57-month custodial sentence. We affirm.

1. Duarte-Reyes claims that the district court erred in denying the government’s motion to dismiss the indictment without prejudice based on the unavailability of a second A-file at the start of the trial. This argument is, to say the least, somewhat curious because Duarte-Reyes opposed the motion on the grounds that the indictment should be dismissed with prejudice. Under plain error review, “relief is not warranted unless there has been (1) error, (2) that is plain, and (3) affects substantial rights.” Jones v. United States, 527 U.S. 373, 389 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999). A careful review of the record reveals that, even if we were to assume error, Duarte-Reyes’s substantial rights were not affected. The late-discovered file did not contain any information that disproved an element of the crime as evidenced by the role of the second A-file at trial. The only context in which the defense referenced the second file was to create doubt about the…