Ballesteros-Selinger

MEMORANDUM **

A jury convicted Eloy Ballesteros-Selinger (“Ballesteros”) of illegal re-entry following deportation in violation of 8 U.S.C. § 1326 . He was sentenced to a 57-month term of imprisonment. 1 Ballesteros appeals the district court’s denial of his motions to suppress a statement he gave after his warrantless arrest, the district court’s denial of his motion to dismiss the indictment, several evidentiary rulings made during his trial, the court’s denial of two requested jury instructions, and his sentence. We have jurisdiction under 28 U.S.C. § 1291 . We affirm the conviction but remand for resentencing.

A. Motions to Suppress Ballesteros’s Post-Arrest Statement

The district court did not err in denying Ballesteros’s motion to suppress his post-arrest statement that was based on his alleged unlawful arrest. 2 Faced with conflicting testimony, it was not clear error for the district court to credit the testimony of Agent Haynes. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985). Thus, the district court could properly conclude that the agents had consent to enter Ballesteros’s house and did not use a ruse until…