                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JUL 19 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 15-50163

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02582-LAB

 v.
                                                 MEMORANDUM*
APOLINAR GUTIERREZ-
HERNANDEZ,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 15-50164

              Plaintiff - Appellee,              D.C. No. 3:15-cr-00128-LAB

 v.

APOLINAR GUTIERREZ-
HERNANDEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                           Page 2 of 4
                               Submitted July 8, 2016**
                                 Pasadena, California

Before: VANASKIE,*** MURGUIA, and WATFORD, Circuit Judges.

      1. In No. 15-50164, Apolinar Gutierrez-Hernandez challenges his

conviction for attempted reentry of a removed alien. Neither of the arguments he

raises provides a basis for reversal.

      First, none of the prosecutor’s statements during closing argument

constituted error, much less plain error. The prosecutor did not ask the jury to

consider the verdict’s social ramifications or urge the jury to convict Gutierrez-

Hernandez for reasons “wholly irrelevant” to his guilt or innocence, such as “to

protect community values, preserve civil order, or deter future lawbreaking.”

United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011) (citation omitted).

Nor did the prosecutor’s statements dilute the government’s burden of proof or

attempt to shift the burden of proof to the defendant. See United States v. Segna,

555 F.2d 226, 230 (9th Cir. 1977). Finally, contrary to Gutierrez-Hernandez’s

contention, the prosecutor did not vouch for the strength of the government’s case.



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
                                                                           Page 3 of 4
The prosecutor never assured the jurors about the strength of the government’s

evidence or suggested to them that other information not presented at trial

supported the government’s position. See United States v. Ruiz, 710 F.3d 1077,

1085 (9th Cir. 2013).

      Even if any of the prosecutor’s statements were improper, they did not affect

Gutierrez-Hernandez’s “substantial rights” or “the fairness, integrity, or public

reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467

(1997) (citation omitted). Gutierrez-Hernandez contends that had the prosecutor

not made the challenged statements, the jury would likely have found reasonable

doubt as to his alienage, the sole issue in dispute. But the government presented

strong evidence that Gutierrez-Hernandez was not a U.S. national—namely, his

admission during his arrest that he was a Mexican national, and his admission in

two prior court proceedings that he was not a U.S. national.

      Second, the district court did not err by using the Ninth Circuit’s model jury

instruction on reasonable doubt. We have repeatedly upheld this instruction

against challenges similar to those raised by Gutierrez-Hernandez here. See United

States v. Alcantara-Castillo, 788 F.3d 1186, 1198 n.4 (9th Cir. 2015).

      2. In No. 15-50163, Gutierrez-Hernandez filed a notice of appeal from the

district court’s judgment that he violated the terms of his supervised release. In his
                                                                       Page 4 of 4
opening brief, however, he has abandoned any challenge to the revocation of his

supervised release.

      AFFIRMED.
