     Case: 11-40779     Document: 00511778772         Page: 1     Date Filed: 03/06/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 6, 2012
                                     No. 11-40779
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FLAVIO PALMA-SALOME,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10-CR-1077-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Flavio Palma-Salome appeals his jury trial
conviction for attempting to reenter the United States illegally after having
been convicted previously for an aggravated felony, in violation of 8 U.S.C. §
1326(a) and (b). The sole issue raised by Palma-Salome on appeal is whether the
government failed to prove beyond a reasonable doubt that he attempted to
reenter the United States.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40779    Document: 00511778772       Page: 2   Date Filed: 03/06/2012

                                   No. 11-40779

      As Palma-Salome moved for a judgment of acquittal under Rule 29 of the
Federal Rules of Criminal Procedure at the close of the government’s case, which
was also at the close of all the evidence, he preserved the issue for appellate
review. We review his challenge to the sufficiency of the evidence de novo. See
United States v. Ollison, 555 F.3d 152, 158 (5th Cir. 2009). We will uphold the
jury’s verdict if a reasonable trier of fact could conclude from the evidence that
the elements of the offense were established beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319 (1979); United States v. Percel, 553 F.3d 903, 910
(5th Cir. 2008). We “view[] the evidence in the light most favorable to the verdict
and draw[] all reasonable inferences from the evidence to support the verdict.”
Percel, 553 F.3d at 910 (internal quotation marks and citation omitted). “[W]e
do not weigh evidence or assess the credibility of witnesses, and the jury is free
to choose among reasonable constructions of the evidence.” United States v.
Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).
      To obtain a conviction for attempted illegal reentry, the government must
prove beyond a reasonable doubt that the defendant (1) was an alien at the time
of his alleged offense; (2) had been arrested previously and deported; (3)
thereafter attempted to reenter the United States; and (4) did not receive the
Attorney General’s consent to reenter the United States. United States v.
Cardenas-Alvarez, 987 F.2d 1129, 1131-32 (5th Cir. 1993).
      Palma-Salome challenges only the third element.             He asserts that
“[a]ttempted reentry requires that a previously deported alien approach a port
of entry and make a false claim of citizenship or non-resident status.” He
contends that because there was no evidence that (1) he gave a false name or a
false statement to border protection officials, or (2) he lied to officials about his
immigration status, or (3) he told any official that he intended to reenter the
United States, the evidence was insufficient to find that he intended to reenter
this country.



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   Case: 11-40779   Document: 00511778772      Page: 3   Date Filed: 03/06/2012

                                  No. 11-40779

      Although no evidence was presented at trial that Palma-Salome gave false
information to a border protection officer or expressly stated that he intended to
reenter this country, there was other evidence from which the jury could have
inferred that Palma-Salome intended to reenter the United States. The jury
heard evidence that Palma-Salome was a passenger in a vehicle that approached
the entry point on the Veterans International Bridge and that he and two other
passengers in the vehicle presented to the officers legal permanent resident
cards, which authorize aliens to work and reside in the United States. Further,
the officer who inspected the men at the entry point testified that he was
specifically told that the three men with legal permanent resident cards were
going to Georgia. Although the officer could not recall who in the vehicle told
him this, he testified that Palma-Salome was one of the individuals who
presented a legal permanent resident card.
      The jury could have reasonably inferred from the evidence presented that
Palma-Salome made a false representation regarding his admissibility status or
that he attempted to deceive officials by presenting a legal permanent resident
card that he knew was invalid. See United States v. Morales-Palacios, 369 F.3d
442, 449 (5th Cir. 2004) (noting that the process of deportation puts an alien on
notice of consequences of attempting to reenter without government consent).
Even if there could have been some other explanation for Palma-Salome’s
actions, it is not necessary that the evidence exclude every reasonable hypothesis
of innocence. See United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000)
(noting that direct and circumstantial evidence are weighed equally, and it is not
necessary that the evidence exclude every reasonable hypothesis of innocence).
      We conclude that a reasonable trier of fact could find that the evidence
presented at trial, when viewed in the light most favorable to the verdict,
established beyond a reasonable doubt that Palma-Salome attempted to reenter
the United States. See Jackson, 443 U.S. at 319; Percel, 553 F.3d at 910.
Accordingly, the judgment of the district court is AFFIRMED.

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