                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 22 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50056

              Plaintiff - Appellee,              D.C. No. 3:12-cr-04665-LAB-1

 v.
                                                 MEMORANDUM*
FELIPE MEDINA-NAVEJAR,

              Defendant - Appellant.


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

                        Argued and Submitted July 8, 2015
                              Pasadena, California

Before: REINHARDT, FERNANDEZ, and CLIFTON, Circuit Judges.

      Felipe Medina-Navejar appeals his conviction for attempted illegal reentry

in violation of 8 U.S.C. § 1326. We affirm.

      First, Medina argues that the prosecutor committed misconduct during her

closing argument when she suggested that, at the time of his arrest, Medina did not



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
express surprise or provide an innocent explanation for his presence in the United

States. Medina argues that this was misconduct because the prosecutor knew that a

few hours after his arrest Medina told a Border Patrol Agent that he had

accidentally crossed the border.1

      It is well within the bounds of fair advocacy for a prosecutor to ask the jury

to draw “reasonable inferences from the evidence presented at trial.” United States

v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). Because the prosecutor did

nothing more, her closing argument was proper. First, she accurately summarized

testimony regarding Medina’s answers to a Border Patrol Agent at the scene of

arrest (Medina admitted that he was a Mexican citizen and did not have permission

to be in the United States). Then she asked the jury to infer that Medina must have

known that he was in the United States because he did not express surprise when

the United States Border Patrol Agent arrested him. The evidence introduced at

trial was easily sufficient to support this reasonable inference. The fact that, some

hours later, Medina told a Border Patrol Agent that he accidentally crossed the

border is irrelevant. The prosecutor did not argue that Medina never offered




      1
       A conviction for attempted illegal reentry under § 1326 requires proof that
“the defendant had the purpose, i.e., conscious desire, to reenter the United States
without the express consent of the Attorney General.” United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).
exculpatory statements2 but instead that Medina did not appear surprised, at the

time of his arrest, to encounter a U.S. Border Patrol Agent.

      Second, Medina argues that the district court erred in its instructions to the

jury. He maintains that a conviction for attempted illegal reentry requires proof of

intent to violate the immigration laws and that the district court failed to instruct

the jury as to that element. In United States v. Gracidas-Ulibarry, we held that the

intent element for an attempted illegal reentry conviction is “the purpose, i.e.,

conscious desire, to reenter the United States without the express consent of the

Attorney General.” 231 F.3d at 1196. Because the district court instructed the jury

using indistinguishable language, it did not err in its jury instructions.

      Accordingly, the judgment of the district court is AFFIRMED.




      2
        No evidence at trial suggested–nor does Medina argue now–that, at the
time of his arrest, Medina provided an innocent explanation for crossing the
border.
