                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 08 2013

                                                                        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. 11-10619

               Plaintiff - Appellee,             DC No. 4:09 cr-1334 DCB

  v.
                                                 MEMORANDUM *
CRUZ MONTANO-LORONA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                            Submitted January 17, 2013 **
                              San Francisco, California

Before:        TASHIMA and GRABER, Circuit Judges, and ADELMAN,***
               District Judge.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
       ***
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
      Cruz Montano-Lorona (“Montano”) appeals his jury conviction for illegal

reentry under 8 U.S.C. § 1326(a). His primary defense at trial was that he had

acquired derivative citizenship through his father, a United States citizen. We

affirm.

      1.     Montano asserts that the district court absolved the government of its

burden to disprove derivative citizenship. However, “the government does not

have the burden of disproving each element of derivative citizenship; only

‘alienage’ is among the elements of [illegal reentry], so only it must be proven.”

United States v. Sandoval-Gonzalez, 642 F.3d 717, 724 (9th Cir. 2011) (emphasis

omitted). Nor did the district court place the burden of proving derivative

citizenship on Montano, which was in keeping with the principle that “a criminal

defendant faces no burden whatsoever regarding the issue of derivative citizenship

in a prosecution for an offense of which alienage is an element.” Id. at 723.

Finally, read in context and in light of these principles, the district court’s

observation that “there’s no presumption” regarding derivative citizenship was a

correct statement of the law. Accordingly, the district court did not impermissibly

shift the burden of proof or undermine the presumption of innocence.

      2.     There was sufficient evidence to support the conviction. The only

question at trial was whether Montano was an alien at the time of reentry.


                                           -2-
Montano stipulated that he was deported on January 23, 2009, and the government

presented evidence that he had also been removed on March 10, 1988. There was

documentation that Montano had applied for acquired or derivative citizenship and

that the application had been denied. Montano also had admitted to Border Patrol

agents that he was a Mexican citizen in the United States illegally. Finally, the

government presented evidence indicating that neither of Montano’s siblings

qualified for acquired or derivative citizenship.

      In response to this evidence, Montano presented only his own testimony and

two inconclusive statements from his parents. Accordingly, there was ample

evidence to support the conviction. See id. at 727 (two previous deportations, birth

in Mexico, and defendant’s admission that he was a Mexican citizen illegally in the

United States was sufficient evidence of illegal reentry).

      AFFIRMED.




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