                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 09 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 15-50040
                                                      15-50042
              Plaintiff - Appellee,
                                                 D.C. Nos. 3:14-cr-02570-LAB-1
 v.                                                        3:14-cr-07098-LAB-1

ADRIAN CHAVEZ-NAVA, AKA Chavez
Adrian Nava Peralta                              MEMORANDUM*

              Defendant - Appellant.


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

                        Argued and Submitted April 8, 2016
                               Pasadena, California

Before: FARRIS, SENTELLE**and M. SMITH Circuit Judges.

      Chavez-Nava appeals his conviction of being a removed alien found in the

United States in violation of 8 U.S.C. § 1326, his subsequent sentencing for this

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable David Bryan Sentelle, Senior Circuit Judge for the
U.S. Court of Appeals for the District of Columbia Circuit, sitting by designation.
violation, as well as his sentencing for a violation of his supervised release on a prior

conviction for illegal reentry in 2011. We have jurisdiction under 28 U.S.C. § 1291

and affirm the conviction and sentencing decisions.

      In 2011, Chavez-Nava pleaded guilty to illegal reentry in the Eastern District

of Washington and was sentenced to a 27-month prison term and 3 years of supervised

release. On August 13, 2014, while still on supervised release, Chavez-Nava returned

to the United States, but was apprehended near the border. Chavez-Nava was

prosecuted on one count of being a “Removed Alien Found in the United States,” in

violation of 8 U.S.C. § 1326(a) and (b). Based on this new charge, a probation officer

in the Eastern District of Washington petitioned the district court to revoke Chavez-

Nava’s supervised release.        The Eastern District of Washington matter was

consolidated with the § 1326 case in the Southern District of California.

      To prove alienage at trial, the government presented evidence of Chavez-Nava’s

three prior deportations, his admissions that he was a Mexican citizen with no right

to enter the United States, circumstantial evidence from the facts of his entry,

including that he entered by coming over the fence, and that he tried to hide from

Border Patrol agents. A Border Patrol agent testified about the immigration process

and about Chavez-Nava’s immigration status and history. The agent confirmed

Chavez-Nava’s wife’s status as a U.S. citizen and that his mother was naturalized in


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2007. The agent also confirmed that his mother, after naturalizing, petitioned for

status for two people not including Chavez-Nava. Chavez-Nava disputed (1) whether

he was an alien and (2) whether he had official permission to reenter the country.

Chavez-Nava noted that one Alien-File (A-File) document included a second,

different A-File number showing that Chavez-Nava had applied for legal status in

1989. Neither Chavez-Nava’s A-File nor the relevant databases showed that he had

received permission to enter the United States at any time.

      During closing arguments, the prosecutor stated that the defense’s position with

regard to Chavez-Nava’s potential permission to reenter was “the grossest

speculation.” E.R. at 220. As to the element of alienage, the prosecutor read from the

reasonable doubt instruction, noting that reasonable doubt “is not based purely on

speculation.” E.R. at 224, 225. He argued that the case was “straightforward. . . . The

defendant is an alien. . . . [T]he speculation, the machinations, trying to say, well,

maybe he was a U.S. citizen, there is no evidence that he was a U.S. citizen.” E.R. at

225. The defense’s closing focused on whether the government had proved beyond

a reasonable doubt that Chavez-Nava was an alien and that Chavez-Nava did not have

permission to enter the United States. In rebuttal, the government stated that “there

is no doubt that the defendant is an alien,” E.R. at 235, and described Chavez-Nava’s

arguments on alienage as “the grossest speculation,” E.R. at 237.


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      The jury found Chavez-Nava guilty of being a removed alien found in the

United States, and the court concluded that Chavez-Nava violated the terms of his

supervised released. The court applied a 12-level enhancement to the sentence based

on a prior conviction for distribution of cocaine under Revised Code of Washington

(RCW) § 69.50.401.

      On the conviction for being a convicted alien found in the United States, the

district court imposed a 36-month custodial sentence to be followed by 3 years of

supervised release. On the supervised release violation, the district court imposed a

4-month custodial sentence to be served consecutive to the 36-month custodial term.

The district court imposed an additional 32 months of supervised release to run

concurrently with the 3 years of supervised release imposed for being a convicted

alien found in the United States.

      On appeal, Chavez-Nava argues that this Court should vacate and remand for

a new trial because of prosecutorial misconduct; that the district court erred in

calculating the sentencing enhancements for this conviction, and therefore, we should

remand for re-sentencing; and that the district court was substantively unreasonable

in imposing two concurrently running periods of supervised release for the violation

of his prior and then-current term of supervised release. We affirm.




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      As to the claims of prosecutorial misconduct, Chavez-Nava argues that the

prosecutor improperly vouched for the government’s case, degraded the defense’s

case, and that the prosecutor diluted the burden of proof in argument. Because

Chavez-Nava did not raise an objection to the prosecutor improperly vouching, we

review for plain error. See United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir.

2011). With respect to Chavez-Nava’s other claims of prosecutorial misconduct, we

review for abuse of discretion. See id. at 1120; see also E.R. at 220, 225, 237.

      The prohibition on vouching lies in overtly conveying the prosecutor’s personal

viewpoint that the evidence is overwhelming. See United States v. Ruiz, 710 F.3d

1077, 1085 (9th Cir. 2013).         However, even if the prosecutor’s repeated

characterization of the government’s evidence as “overwhelming” crossed the line

into prosecutorial misconduct, there is no reasonable probability that absent those

comments, there would have been a different result. The record in this case shows

that the government presented strong and varied evidence for its position, including

that Chavez-Nava was previously deported three times. E.R. at 172-75.

      The district court did not plainly err in applying a 12-level increase for Chavez-

Nava’s 1989 conviction under RCW § 69.50.401 after concluding that the conviction

was a categorical drug trafficking offense. RCW § 69.50.401 makes it a crime to

“manufacture, deliver, or possess with intent to manufacture or deliver, a controlled


                                           5
substance.” RCW § 69.50.401(a) (1989). For the first time on appeal, Chavez-Nava

challenges the sentencing enhancement on the basis that an individual can be

convicted as an accomplice under § 69.50.401(a), which would only require a

knowing mens rea. Specifically, he argues that because a conviction under the generic

definition of drug trafficking offenses requires a higher mens rea of purpose or intent,

the district court erred in applying a 12-level sentencing enhancement for his

conviction under 28 U.S.C. § 1326.

      U.S.S.G. § 2L1.2(b)(1)(A) provides for an offense level increase if the

defendant has been deported subsequent to a conviction for a “drug trafficking

offense.” U.S.S.G. § 2L1.2(b)(1)(A). “Prior convictions of offenses counted under

subsection (b)(1) [which includes “drug trafficking offense”] include the offenses of

aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S.S.G.

§ 2L1.2 cmt. 5. Moreover, “[a] conviction for aiding and abetting a drug trafficking

offense qualifies as a predicate offense under the Guidelines.” United States v.

Martinez-Rodriguez, 472 F.3d 1087, 1097 (9th Cir. 2007).

      Although there may be a theoretical possibility that a defendant could be

prosecuted as an accomplice with only a knowing mens rea under § 69.50.401,

Chavez-Nava has not shown the realistic probability of prosecution as an accomplice

with only a knowing mens rea under the drug offense statute in Washington. Cf.


                                           6
United States v. Burgos-Ortega, 777 F.3d 1047, 1055-56 (9th Cir. 2015). Therefore,

it is not “obvious,” as required for plain error, that the Washington statute would

encompass liability with only a knowing mens rea. United States v. Jackson, 697 F.3d

1141, 1144 (9th Cir. 2012).

      Finally, on the grounds that the sentence was substantively unreasonable,

Chavez-Nava appeals the district court’s decision to impose two concurrently running

periods of supervised release as a “triple deterrent” to future reentry.

      In determining substantive reasonableness, “we are to consider the totality of

the circumstances, including the degree of variance for a sentence imposed outside the

Guidelines range.” United States v. Autery, 555 F.3d 864, 870 (9th Cir. 2009). Given

Chavez-Nava’s prior conviction and illegal reentries, the district court did not abuse

its discretion by adding an additional term of supervised release. See United States

v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009). Therefore, the district

court’s decision to impose two concurrently running periods of supervised release was

not substantively unreasonable.

      AFFIRMED.




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