                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            MAY 11 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50495

              Plaintiff-Appellee,                D.C. No. 3:14-cr-01494-AJB

 v.
                                                 MEMORANDUM*
ARTEMIO GONZALEZ-ANDRADE,

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                              Submitted May 8, 2017**

Before:      REINHARDT, LEAVY, and NGUYEN, Circuit Judges.

      Artemio Gonzalez-Andrade appeals from the district court’s judgment and

challenges his jury-trial conviction for attempted reentry of a removed alien, in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Gonzalez-Andrade contends that the district court erred in failing to give a

voluntary intoxication instruction sua sponte. As Gonzalez-Andrade

acknowledges, we review this claim for plain error. See United States v. Bear,

439 F.3d 565, 568 (9th Cir. 2006). Because the trial transcript does not reflect an

evidentiary basis to conclude that Gonzalez-Andrade was intoxicated, much less

sufficiently intoxicated as to be unable to form the specific intent to enter the

United States, the district court did not plainly err in failing to give the instruction.

See United States v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000); see also United

States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987) (district court did not err

in failing to instruct on voluntary intoxication when testimony established that

defendant’s behavior during the offense was inconsistent with intoxication).

      AFFIRMED.




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