                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 17 2012

                                                                        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,                        No. 11-10205

              Plaintiff - Appellee,              D.C. No. 4:09-cr-01423-RCC-
                                                 HCE-1
  v.

DIONICIO REYES-PEREZ, AKA                        MEMORANDUM *
Dionicio Perez,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                       Argued and Submitted April 19, 2012
                            San Francisco, California

Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.

       Dionicio Reyes-Perez appeals his jury conviction and sentence for illegal

reentry after deportation in violation of 8 U.S.C. § 1326.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Reyes-Perez argues that statements he made at the time of his arrest and

during a motions hearing should have been suppressed. Even assuming error, there

was no prejudice. The uncontroverted evidence showed that Reyes-Perez was

found on the roof of a warehouse just across the United States-Mexico border, that

he had previously been deported to his country of origin, Mexico, and that he had

expressly abandoned any claims for relief from deportation. The denial of the

suppression motion did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Ghent v. Woodford, 279 F.3d 1121, 1127 (9th Cir.

2002) (internal quotation marks omitted). Because any error was harmless, the

conviction must be affirmed.

      At sentencing, the court denied a sentencing reduction for acceptance of

responsibility and, in doing so, relied at least to some extent on the ground that

Reyes-Perez had put the government to its burden of proof. This was error. See

United States v. Martinez-Martinez, 369 F.3d 1076, 1089 (9th Cir. 2004). For this

reason, the sentence must be reconsidered. The other challenges to the sentence

are without merit.

      We AFFIRM the conviction, VACATE the sentence, and REMAND for

the district court to reconsider whether Reyes-Perez should receive a sentencing

reduction for acceptance of responsibility.


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