                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 4, 2014
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 13-1229
 v.                                           (D.C. No. 1:12-CR-00059-WYD-1)
                                                          (D. Colo.)
 SERVILIO OSWALDO ESCOBAR,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.


      Servilio Escobar came to this country illegally from El Salvador but was

initially granted “temporary protective status” — essentially a conditional

guarantee that he wouldn’t be deported. All that changed when he was convicted

for felony theft. At that point, his protective status was revoked and he became

subject to deportation. But Mr. Escobar didn’t leave immediately, and neither did

the government get around to removing him. That is, until he was arrested again,

this time for driving under the influence of alcohol. Local law enforcement



      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
notified Immigrations and Customs Enforcement that Mr. Escobar was in custody

and unlawfully present in the United States. ICE took the opportunity to ask Mr.

Escobar some questions. During that interview, Mr. Escobar admitted he was a

foreign national in the country illegally and soon after that he was finally

deported. Within a month, though, Mr. Escobar returned to this country, again

illegally. After learning of his presence, the government arrested him and a jury

convicted him of illegally reentering the United States after a prior deportation

for a felony conviction. This appeal concerns one aspect of that trial.

      Mr. Escobar says the district court erred when it permitted testimony about

certain aspects of his interview with ICE officials after his drunk driving arrest.

In particular, he says the district court erred by allowing testimony that he

admitted to being an alien illegally in the country at that time. Mr. Escobar says

he didn’t receive a Miranda warning during the interview. And because of this,

he argues, any use at trial of his admissions during that interview violated his

Fifth Amendment right against self-incrimination.

      The central difficulty Mr. Escobar confronts is this. As a court of appeals,

we may not undo the jury’s verdict if it’s clear to us “beyond a reasonable doubt”

that any putative Miranda error “did not contribute to the verdict obtained.”

Chapman v. California, 386 U.S. 18, 24 (1967); see also Arizona v. Fulminante,

499 U.S. 279, 306-12 (1991) (Chapman’s harmless-error analysis applies to

coerced confessions). The government, of course, bears the burden in this court

                                        -2-
of establishing the harmlessness of any claimed error. United States v. Miller,

111 F.3d 747, 751 (10th Cir. 1997). But here it has done just that.

      To be very clear, we don’t doubt that Mr. Escobar’s admission made plain

to the jury in his most recent trial that he is an alien who was subject to

deportation at the time of his drunk driving arrest. But considerable other

evidence, all of it uncontested, was before the jury already proving exactly this

much beyond a reasonable doubt. By way of example only, Mr. Escobar does not

dispute that it was proper for the jury to rely on other statements he made to ICE

officials that he was born in El Salvador and that he was a national of that

country. Neither does he dispute that the district court properly admitted in

evidence the deportation order that led to his removal from the country after his

drunk driving arrest. That order clearly established (among other things) that Mr.

Escobar had no legal status in the United States at the time in question. Mr.

Escobar himself concedes that he is “not attacking the underlying deportation

proceedings” and cannot do so because he lacks a “good-faith basis to do that.”

Given all this, we fail to see how any reasonable person could dispute his

alienage or his illegal presence in the country prior to his deportation, with or

without reference to the particular admission in question.




                                         -3-
The judgment of the district court is affirmed.


                                ENTERED FOR THE COURT



                                Neil M. Gorsuch
                                Circuit Judge




                                  -4-
