     Case: 15-50159      Document: 00513372859         Page: 1    Date Filed: 02/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                    No. 15-50159                            FILED
                                  Summary Calendar
                                                                      February 8, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS RUBEN ZUNIGA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:13-CR-2296-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Carlos Ruben Zuniga was convicted by a jury of attempted illegal reentry
and sentenced to 60 months of imprisonment and three years of supervised
release. He argues that the Government did not produce evidence sufficient to
establish he attempted to enter the United States. Zuniga also asserts that
the district court reversibly erred when it denied his motion for judgment of




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-50159    Document: 00513372859     Page: 2   Date Filed: 02/08/2016


                                 No. 15-50159

acquittal because the Government’s failure to preserve evidence violated his
rights under the Due Process Clause.
      “It is not enough to merely mention or allude to a legal theory.” United
States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010). A party asserting an
argument on appeal must brief it adequately or the argument is waived. Id.
Zuniga provides no specific argument or analysis on the due process issue;
accordingly, it is waived. See id.
      We review “properly preserved claims that a defendant was convicted on
insufficient evidence with substantial deference to the jury verdict, asking only
whether a rational jury could have found each essential element of the offense
beyond a reasonable doubt.” United States v. Davis, 690 F.3d 330, 336 (5th
Cir. 2012) (quotation marks omitted). Viewing the evidence in the light most
favorable to the jury verdict, see United States v. Jara-Favela, 686 F.3d 289,
301 (5th Cir. 2012), we determine that the evidence was sufficient to support
Zuniga’s conviction. Trial testimony established that Zuniga approached the
primary inspection area, not the information center, at the Paso del Norte Port
of Entry. Zuniga stated that he was a United States citizen, that he did not
have any proof of citizenship because he had recently been robbed, that he had
been deported previously, and that he had received a waiver.            Zuniga’s
statements and actions supported the conclusion that he intended to cross the
border. The fact that “an opposite inference could arise from the evidence is
not enough.” Id. at 303; see also United States v. Cardenas-Alvarez, 987 F.2d
1129, 1131–34 (5th Cir. 1993).
      With respect to Zuniga’s contention that the Government could not
convict him without the evidence the Government failed to preserve, Zuniga
has not shown that this evidence was relevant to the case. Although Zuniga
told border officials that he was only seeking information about fixing his



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                                No. 15-50159

immigration status, we have held that a defendant’s argument that “he was
merely inquiring into how he could regain his citizenship and that he was not
attempting to enter the United States did not create a reasonable doubt as to
his intent.” Cardenas-Alvarez, 987 F.2d at 1132. Further, it is irrelevant
whether Zuniga believed he had a waiver.       See United States v. Morales-
Palacios, 369 F.3d 442, 449 (5th Cir. 2004) (stating that because the defendant
clearly intended to attempt to illegally reenter the United States, it did not
matter that the defendant’s “mental state may have reasonably led him to
believe he did so with the government’s consent”).
      AFFIRMED.




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