                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 21 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        Nos. 09-30067, 09-30068,
                                                 09-30071
             Plaintiff - Appellee,
                                                 D. C. No. CR-08-131-GF-SEH,
  v.                                             D. C. No. CR-08-111-GF-SEH,
                                                 D. C. No. CR-08-154-GF-SEH
SALVADOR AVILA-RIVERA,

             Defendant - Appellant.              MEMORANDUM *



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                     Argued and Submitted December 7, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON, and BERZON, Circuit Judges.

       Salvador Avila-Rivera (“Avila”) was convicted of being found in the United

States after having been removed from the country after an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2), and the district court sentenced Avila to

10 years and 5 months (125 months) of incarceration for that offense. At the time



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of his conviction, Avila was on supervised release for two previous convictions.

The district court found Avila to be in violation of the terms of his release for each

conviction, revoked his release, and imposed two sentences of two years (24

months) each, to run concurrently with one another but consecutively with the

sentence of 10 years and 5 months. Avila timely appealed. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      “A trial court’s denial of a motion for acquittal under Federal Rule of

Criminal Procedure 29 is reviewed de novo.” United States v. Johnson, 357 F.3d

980, 983 (9th Cir. 2004). We recently decided that an alien who is denied entry

into Canada from the United States has not left the United States, as a matter of

law, even if he has “technically traveled onto Canadian land.” United States v.

Ambriz-Ambriz, 586 F.3d 719,723 (9th Cir. 2009). Because Avila had not left the

United States, he was “found in” the United States when he was found and

detained at the Sweetgrass Port of Entry. See id. at 722-24. Because Avila was

found in the United States, there was evidence sufficient for a rational trier of fact

to conclude, as the jury in this case did, that Avila violated 8 U.S.C § 1326, and the

district court was correct to deny Avila’s Rule 29 motions.

      “Whether a jury instruction misstates elements of a statutory crime is a

question of law reviewed de novo.” United States v. Castellanos-Garcia, 270 F.3d


                                           2
773, 775 (9th Cir. 2001). “Failure to instruct on the defense theory of the case is

reversible error if the theory is legally sound and evidence in the case makes it

applicable.” Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004). Because

Avila’s proposed jury instruction misstates the meaning of the term “found in” as

used in 8 U.S.C § 1326, and because the defense’s “official restraint” theory is

inapplicable to someone who has not left the United States, Ambriz-Ambriz, No.

08-30431 at *2-*4, the district court was correct to refuse to issue Avila’s proposed

instructions. The instructions the court did issue accurately stated the law, and thus

neither usurped the jury’s fact-finding role nor violated Avila’s Fifth and Sixth

Amendment rights.

      “Preserved Apprendi [v. New Jersey, 530 U.S. 466 (2000)] challenges are

reviewed de novo.” United States v. Salazar-Lopez, 506 F.3d 748, 750 (9th Cir.

2007) (citations omitted). “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury.” Apprendi, 530 U.S. at 490. Because “prior convictions

need not be alleged in an indictment,” United States v. Grisel, 488 F.3d 844, 846

(9th Cir. 2007) (en banc) (citing Almendarez-Torres v. United States, 523 U.S.

224, 243-47 (1998)), the indictment brought against Avila raises no Apprendi




                                           3
concerns and, combined with the information provided at sentencing, was more

than sufficient to trigger 8 U.S.C. § 1326(b)(2).

      “We review a district court’s determination that a prior conviction qualifies

for a sentencing enhancement under U.S.S.G. § 2L1.2 de novo.” United States v.

Valle-Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007). The government must prove

the existence of the prior conviction by clear and convincing evidence. Id. at 1201.

Under the modified categorical approach, “the court can examine documentation or

judicially noticeable facts that clearly establish that the conviction is a predicate

conviction for enhancement purposes.” United States v. Navidad-Marcos, 367

F.3d 903, 908 (9th Cir. 2004) (quotations and citations omitted). Here, Count I of

the charging document that led to Avila’s California conviction alleged that Avila

sold heroin, Avila’s lawyer at the time stated in his plea colloquy with the judge

that “we have truly just a one-count sale here,” and, most importantly, the official

judgment found Avila guilty of the “sale of heroin.” This is clear and convincing

evidence that Avila’s California prior conviction matched the category of “drug

trafficking offense” set forth at § 2L1.2(b)(1)(A) of the Sentencing Guidelines, and

the district court’s assessment of 16 additional offense levels was not error.

       “We have historically reviewed the district court’s consideration of

non-binding policy statements, such as Chapter 7 [“Violations of Probation and


                                            4
Supervised Release”], for abuse of discretion. We review the sentence ultimately

imposed for reasonableness.” United States v. Miqbel, 444 F.3d 1173, 1176 (9th

Cir. 2006) (citations omitted). The district court, in its three-paragraph colloquy

with Avila regarding the reasoning behind the revocation sentences, noted that it

gave full consideration to the Chapter 7 policy statements, and discussed at length

Avila’s breach of trust. The record does not suggest that the two concurrent two-

year (24-month) revocation sentences, which are within the guideline range, are

either procedurally or substantively unreasonable, nor that the district court abused

its discretion when formulating them.

       When reviewing sentences “[o]n appeal, we first consider whether the

district court committed significant procedural error, then we consider the

substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (en banc). “It would be procedural error for a district court to

fail to calculate-or to calculate incorrectly-the Guidelines range; . . . to fail to

consider the § 3553(a) factors; . . . or to fail adequately to explain the sentence

selected. . . .” Id. Substantive reasonableness is reviewed under an abuse of

discretion standard. Id. As to procedure, the district court correctly calculated the

guideline sentence both for Avila’s violation of 8 U.S.C. § 1362 and for his

revocation sentences, treated the guidelines as advisory rather than mandatory,


                                             5
considered the § 3553(a) factors when appropriate, did not rely on clearly

erroneous facts when choosing a sentence, and adequately explained its within-

guidelines sentences, thus satisfying the five hallmarks of procedural

reasonableness set forth in Carty. 520 F.3d at 993. As to substance, Avila’s main

objection is the same Apprendi-based objection to the assessment of 16 additional

offender levels, which, as discussed above, is unavailing. Avila does not raise, nor

does the record support, any other argument that the district court issued an

unreasonable sentence or otherwise abused its discretion.

      AFFIRMED.




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