                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50068

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-02268-LAB-1
 v.

JOAQUIN ANTONIO DAVALOS-LOPEZ,                  MEMORANDUM*

                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 12, 2019
                              Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and SIMON,** District
Judge.

      Joaquin Antonio Davalos-Lopez was convicted in a jury trial of attempted

illegal reentry following deportation, in violation of 8 U.S.C. § 1326 (Count 1),

and attempted illegal entry by an alien, in violation of 8 U.S.C. § 1325 (Count 2).



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
The district court sentenced him to 37 months in prison and three years of

supervised release for both counts, to run concurrently. Davalos appeals his

conviction for Count 1 and his sentence for both counts. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm Davalos’s conviction and sentence for

Count 1, but vacate his sentence for Count 2.

1.     Davalos argues that the indictment was fatally flawed as to Count 1 because

it did not allege that Davalos had the specific intent to enter the United States free

from official restraint. Because the indictment “set forth the offense in the words

of the statute itself,” however, “[i]t is generally sufficient . . . as long as ‘those

words . . . fully, directly, and expressly, without any uncertainty or ambiguity, set

forth all the elements necessary to constitute the offence intended to be punished.’”

Hamling v. United States, 418 U.S. 87, 117 (1974) (quoting United States v. Carll,

105 U.S. 611, 612 (1881)). The indictment here did just that. Unlike the

indictment in United States v. Pernillo-Fuentes, 252 F.3d 1030, 1031–32 (9th Cir.

2001), which Davalos relies on, the present indictment required the grand jury to

find that Davalos crossed the border “with the purpose, i.e., conscious desire, to

enter” the country without permission. That the indictment did not define the

distinct legal meaning of “entry” does not render it deficient, for indictments need

not contain the level of specificity that may be required in jury instructions.

Compare United States v. Vazquez-Hernandez, 849 F.3d 1219, 1225 n.3 (9th Cir.


                                             2
2017) (requirements for jury instructions) with United States v. Resendiz-Ponce,

549 U.S. 102, 108 (2007) (requirements for indictments).

2.    We also reject Davalos’s argument that the district court erred at sentencing

by denying him a downward adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1(a). The court emphasized several times that it “fully

under[stood] that one who goes to trial is eligible for . . . acceptance of

responsibility.” But after considering the circumstances—including Davalos’s

“impassioned entreaty to the jury to let [him] go,” his lack of apology to the court,

and the fact that Davalos had nine prior convictions for immigration offenses—the

court determined that Davalos had not clearly demonstrated sincere contrition.

Because that decision was not “without foundation,” the district court did not abuse

its discretion in determining that Davalos did not meet the requirements for the

downward adjustment. United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993).

3.    We vacate Davalos’s sentence as to Count 2. The district court erred by

sentencing Davalos to 37 months in prison and three years of supervised release

because the statutory maximum sentence for that count is two years in prison and

one year of supervised release. 8 U.S.C. § 1325(a); 18 U.S.C. §§ 3559(a)(5),

3583(b)(3).

      AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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