                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 19 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-30299

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00245-BLW-1

  v.
                                                 MEMORANDUM*
SILVIANO MARCELINO-GARCIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                        Argued and Submitted July 15, 2010
                                Portland, Oregon

Before: GOODWIN, PREGERSON, and WARDLAW, Circuit Judges.

       Silviano Marcelino-Garcia appeals his conviction for illegal reentry after a

prior deportation under 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm. Because the parties are familiar with the facts, we do not

restate them here.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         I.

      We review de novo claims of insufficient evidence. United States v.

Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (citing United States v. Shipsey, 363

F.3d 962, 971 n.8 (9th Cir. 2004)). Evidence is sufficient to support a conviction

if, “reviewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Contreras, 63 F.3d 852, 857 (9th Cir. 1995)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).

      In this case, sufficient evidence supports the jury’s conclusion that the

Government proved, beyond a reasonable doubt, that Marcelino-Garcia physically

left the United States. The Government submitted into evidence a warrant of

removal, which this court has repeatedly found to be sufficient evidence to

establish physical removal. See, e.g., United States v. Salazar-Lopez, 506 F.3d

748, 755 (9th Cir. 2007); United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th

Cir. 2006); United States v. Bahena-Cardenas, 411 F.3d 1067, 1074 (9th Cir.

2005); United States v. Contreras, 63 F.3d 852, 857 (9th Cir. 1995). Agent

Pedregon testified that after an immigration officer witnessed a deportee’s exit

through the gate to the Paseo Del Norte Bridge and signed that deportee’s warrant,

it was possible that a deportee could avoid physically crossing the border. Agent


                                          2
Pedregon emphasized that the chances of this happening were remote. Therefore,

Agent Pedregon’s testimony does not undermine the sufficiency of the warrant of

removal.

                                        II.

      We review a defendant’s claim, raised for the first time on appeal, that the

government improperly shifted the burden of proof to the defendant for plain error.

United States v. Vaandering, 50 F.3d 696, 701 (9th Cir. 1995). In this case, the

Government expressly stated during its closing argument that it, and not

Marcelino-Garcia, bore the burden of proof to show that Marcelino-Garcia had

physically departed from the United States. The Government then highlighted

Marcelino-Garcia’s lack of evidence to support his claim that he had not been

physically removed from the United States. The Government may comment on the

weaknesses of a defendant’s case without impermissibly shifting the burden to that

defendant. Id. at 701-02. In this case, the Government did not shift the burden of

proof to Marcelino-Garcia.

      AFFIRMED.




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