                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 16 2011

                                                                        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. 09-50429

              Plaintiff - Appellee,              D.C. No. 3:09-cr-01390-LAB-1

  v.
                                                 MEMORANDUM *
ROBERTO LOPEZ-VILLEGAS,

              Defendant - Appellant.



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

                      Argued and Submitted February 9, 2011
                               Pasadena, California

Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.

       Roberto Lopez-Villegas (“Lopez”) appeals his conviction for being found in the

United States after a previous removal, in violation of 8 U.S.C. §§ 1326(a) and (b).

We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         Lopez argues that his statements to immigration officials were the result of

custodial interrogation, and he was not warned prior to their elicitation consistent with

the mandates of Miranda v. Arizona, 384 U.S. 436 (1966). The government concedes

that Lopez was in custody, so only the issue of interrogation is before us.

         “Not every question asked in a custodial setting constitutes ‘interrogation.’”

United States v. Mata-Abundiz, 717 F.2d 1277, 1278 (9th Cir. 1983).              Rather,

“custodial questioning constitutes interrogation whenever, under all the circumstances

involved in a given case, the questions are reasonably likely to elicit an incriminating

response from the suspect.” United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.

1981) (internal quotations omitted).

         But Lopez’s questioning occurred as part of a routine administrative interview

conducted to determine whether any legitimate claim for relief from removal existed.

Lopez was removed almost immediately following the interview. Also, DHS had

already decided it would not prosecute Lopez by the time the interview occurred, and

Lopez was not prosecuted under § 1326 until his later illegal reentry into the United

States subjected him to prosecution. Under these circumstances, the district court did

not err in finding that Lopez’s statements admitting alienage were not likely to elicit

an incriminating response. United States v. Salgado, 292 F.3d 1169, 1174 (9th Cir.

2002).


                                            2
      Any error in admitting a Certificate of Nonexistence of Record to prove lack

of consent to reentry was harmless because the A-file custodian testified that Lopez

never applied for, or received, legal permission to re-enter the United States after his

prior removal, and he had a full and fair opportunity to cross-examine her. United

States v. Orozco-Acosta, 607 F.3d 1156, 1162 (9th Cir. 2010), cert. denied, 2011 U.S.

LEXIS 172 (Jan. 10, 2011).        At trial, Lopez explicitly waived any argument

challenging the scope of the records searches with respect to aliases and alternate

dates of birth, so he is barred from making them here. Tritchler v. County of Lake,

358 F.3d 1150, 1153 (9th Cir. 2004).

      AFFIRMED.




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