                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             AUG 08 2016
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   15-50282

              Plaintiff-Appellee,                 D.C. No.
                                                  3:14-cr-02057-BEN-1
 v.

PABLO CRISTOBAL AYALA-YUPIT,                      MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                            Submitted August 3, 2016**
                               Pasadena, California

Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.

      Pablo Ayala-Yupit appeals his conviction, following a bench trial, for felony

illegal entry in violation of 8 U.S.C. § 1325 and attempted illegal re-entry in




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

we affirm in part and vacate in part.

                                           I

      Ayala contends that the government did not introduce sufficient evidence to

sustain his convictions.

      The parties dispute whether a challenge to the sufficiency of the evidence

was preserved, but “plain-error review of a sufficiency-of-the-evidence claim is

only ‘theoretically more stringent’ than the standard for a preserved claim.”

United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (quoting United States v.

Cruz, 554 F.3d 840, 844 (9th Cir. 2009)). Review of Ayala’s claim is governed by

Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Flyer, 633 F.3d at 917.

                                           II

                                           A

      Ayala first argues that the government failed to introduce sufficient evidence

to sustain the felony § 1325 conviction.

      A “previous conviction for illegal entry is an element of the felony offense

of § 1325.” United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160 (9th Cir.

2004) (quoting United States v. Campos-Martinez, 976 F.2d 589, 591 (9th Cir.

1992)) (alterations omitted). “Absent proof of a former ‘conviction,’ the defendant


                                           2
should not be given a felony sentence.” Id. (quoting United States v.

Arambula-Alvarado, 677 F.2d 51, 52 (9th Cir. 1982)) (alterations omitted). Here,

the government admits that the “stipulated facts were poorly drafted” and “failed to

mention Ayala’s prior § 1325 conviction.” It does not, nor could it, argue that the

evidence was adequate to allow any rational trier of fact to find the essential

element of a former conviction under § 1325 on this record. See Flyer, 633 F.3d

at 917.

      Instead, the government argues that “Ayala’s prior conviction is an objective

fact that was not, is not, and cannot be disputed,” and Ayala’s counsel stated his

expectation that there would be a finding of guilt. But “[w]hat matters in satisfying

the government’s burden of proof in a criminal case is not objective reality nor

defendant’s personal belief, but the evidence the government presents in court.”

United States v. Hernandez-Meza, 720 F.3d 760, 765 (9th Cir. 2013). Here, the

government clearly failed to meet its burden of proof with evidence presented in

court. As a result, Ayala’s felony conviction under § 1325 cannot stand.1




      1
         The government has not requested in its answering brief that we direct the
trial court to enter a judgment for a lesser-included offense of misdemeanor illegal
entry. See United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir. 1994).
Accordingly, any such request is waived.
                                           3
                                           B

      Ayala next argues that the government failed to introduce sufficient

evidence to sustain his § 1326 conviction.

      Specifically, Ayala argues that the government failed to prove his specific

intent to enter the United States free from official restraint. See United States v.

Argueta-Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016) (applying United States v.

Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005)). The parties stipulated that

Ayala knew that he was entering the United States and entered voluntarily, that he

entered at a place other than a designated port of entry, and that he was found in

the United States approximately 5.4 miles east of a port of entry. Considering this

evidence in the light most favorable to the prosecution, such evidence is sufficient

for a rational trier of fact to find that Ayala had specific intent to remain free from

official restraint. See id. at 1161 (“When a person is spotted by border patrol

agents crossing into the United States, away from an official port of entry, this

alone is compelling evidence that the person intends to achieve not only physical

presence in the United States but also freedom from official restraint.”).

Accordingly, Ayala’s § 1326 conviction stands.

      AFFIRMED IN PART, VACATED IN PART.




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