Diaz-Cortez

MEMORANDUM **

Miguel Diaz-Cortez appeals from his conviction by jury trial and his 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.

Diaz-Cortez first contends that insufficient evidence supports his conviction because the prosecution failed to establish that Diaz-Cortez was physically present at a prior deportation proceeding. The Government, however, does not have to prove physical presence in order to establish a § 1326 violation. See United States v. Mendoza-Lopez, 481 U.S. 828, 837 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987); see also United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir.1996) (en banc).

We further reject Diaz-Cortez’s contentions that he was entitled to a jury instruction that, under § 1326, the element of deportation requires both that Diaz-Cortez was physically present at a hearing and that an immigration judge entered a final order of deportation against him. See Alvarado-Delgado, 98 F.3d at 493 (holding that lawfulness of the predicate deportation is not an element of the § 1326 offense and therefore a defendant is not entitled to have that…