                                                                           FILED
                           NOT FOR PUBLICATION                              APR 10 2012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. 11-50091

              Plaintiff - Appellee,              D.C. No. 3:10-cr-03759-BEN-1

  v.
                                                 MEMORANDUM *
ISIDRO ROMERO-CORONA,

              Defendant - Appellant.



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

                     Argued and Submitted February 17, 2012
                              Pasadena, California

Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, sitting by designation.
      Isidro Romero-Corona (“Romero”) was convicted of felony improper entry

by an alien. He argues that the district court erred in denying his motion for

acquittal because (1) the government should have proved prior commission of the

offense rather than prior conviction of the offense; (2) of the inconsistent use of the

terms “commission” and “conviction” in the indictment, preliminary jury

instructions, final jury instructions, and counsels’ arguments; and (3) the court

improperly admitted the misdemeanor judgment of conviction. Romero also

argues that the district court committed reversible error in refusing to give the

instruction that conviction is not proof of prior commission. Finally, Romero

argues that the district court erred in admitting (1) the misdemeanor judgment, (2)

a warrant of removal and related testimony about Romero’s removal, (3) references

in witness testimony about redactions of sensitive law enforcement information,

and (4) admission of a fingerprint card with unredacted references to charges of

illegal entry, illegal re-entry after deport, and removal proceedings. We affirm.

      We review de novo a denial of a motion for acquittal. United States v.

Inzunza, 638 F.3d 1006, 1013 (9th Cir. 2011). Although the improper entry statute

provides that “subsequent commission” of the offense is a felony, 8 U.S.C. §

1325(a), we have interpreted the statute to require “proof of a former ‘conviction.’”

United States v. Arambula-Alvarado, 677 F.2d 51, 52 (9th Cir. 1982); United


                                           2
States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160 (9th Cir. 2004). Moreover, we

have held that “the most reliable evidence” of a prior conviction under 8 U.S.C.

§ 1325 is “a certified copy of the prior conviction.” United States v.

Arriaga-Segura, 743 F.2d 1434, 1436 (9th Cir. 1984). Our holding in United

States v. Nguyen, 465 F.3d 1128, 1132 (9th Cir. 2006), that the admission of

misdemeanor convictions under Federal Rule of Evidence 803(8) was restricted to

the uses approved in United States v. Loera, 923 F.2d 725 (9th Cir. 1991), and

United States v. Wilson, 690 F.2d 1267 (9th Cir. 1982), also does not apply to the

uses we previously approved in the 8 U.S.C. § 1325 line of cases. See United

States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).

      As this circuit requires proof of prior conviction for a § 1325 offense and has

held that a misdemeanor judgment is the best proof of conviction, the district court

did not err in admitting the certified copy of prior conviction into evidence. Given

this and other evidence offered by the government, the district court’s erroneous

instruction that the element was “prior commission” rather than “prior conviction”

was harmless. See United States v. Thongsy, 577 F.3d 1036, 1043 (9th Cir. 2009).

A rational jury could have found Romero guilty beyond a reasonable doubt.

Inzunza, 638 F.3d at 1013.




                                          3
      We review de novo a district court’s “rejection of a defendant's jury

instruction based on a question of law.” United States v. Leyva, 282 F.3d 623, 625

(9th Cir. 2002). We have interpreted § 1325 to require proof of “prior conviction”

rather than “prior commission.” The district court did not err in rejecting

Romero’s proposed instruction.

      We review evidentiary rulings for abuse of discretion. United States v.

Beltran, 165 F.3d 1266, 1269 (9th Cir. 1999). The misdemeanor judgment of

conviction was properly admitted as proof of prior conviction. Moreover, the

misdemeanor conviction, the warrant of removal and related testimony, and the

fingerprint card were not offered to prove Romero’s character for the purpose of

showing that he acted in accordance with that character. Rather, they were offered

to prove an element of the crime.

      AFFIRMED.




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