Ortega-Ortega

MEMORANDUM **

Francisco Ortega-Ortega (“Ortega”) appeals his conviction and sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 (Count 1); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(1) (Count 2); and being an alien in possession of a firearm, in violation of 18 U.S.C. § 922 (g)(5)(A) (Count 4). We reverse his convictions for Counts 1 and 4. We also vacate the sentence imposed for his conviction of Count 2 and remand for resentencing.

1. We reverse and remand Ortega’s convictions for Counts 1 and 4 because the district court erroneously precluded Ortega from presenting evidence of his father’s U.S. citizenship at trial. While the district court judge did not have the benefit of our subsequent decision in United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir.2005) at the time he made those rulings, it is clear now that in prohibiting cross-examination of the government’s alienage witness and precluding reference to derivative citizenship in defense counsel’s closing argument, the district court deprived Ortega of his right to present evidence challenging an element of the offenses with which he was…