                                                                           FILED
                                                                           NOV 02 2015
                           NOT FOR PUBLICATION                          MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50390

              Plaintiff - Appellee,              D.C. No. 2:14-cr-00072-PA-1

 v.
                                                 MEMORANDUM*
KARINA SEVILLA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                           Submitted October 19, 2015**
                               Pasadena, California

Before: KLEINFELD, RAWLINSON, and NGUYEN, Circuit Judges.

      Karina Sevilla appeals her jury conviction and sentence for illegal alien

found in the United States after deportation in violation of 8 U.S.C. § 1326. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1. The district court did not abuse its discretion in precluding cross

examination regarding the government’s failure to investigate the citizenship of

Sevilla’s father. Sevilla’s proffered cross examination was at most only marginally

relevant to the elements required to establish derivative citizenship, and the

probative value of such evidence was substantially outweighed by the risk of

confusing the issues, misleading the jury, and undue delay. See United States v.

Espinoza-Baza, 647 F.3d 1182, 1189-90 (9th Cir. 2011).

      2. Because Sevilla’s derivative citizenship argument lacked the necessary

factual foundation, the district court did not abuse its discretion in refusing to

instruct the jury on Sevilla’s theory of defense. See id. at 1192 (“Without any facts

linking Espinoza-Baza’s evidence with the required elements for derivative

citizenship, an instruction on the defense was not required.”).

      3. The district court did not err in responding to the jury’s questions. The

court properly instructed the jury both that the government had the burden to prove

beyond a reasonable doubt that Sevilla was an alien at the time of her entry into the

United States, and also that there were no jury instructions regarding the issue of

Sevilla’s derivative citizenship. See id. (“[T]he jury’s inquiry to the district court

regarding derivative citizenship does not alter our analysis.”). The court also


                                            2
properly instructed the jury not to “speculate” about why Sevilla’s birth certificate

was not offered into evidence. See Fed. R. Evid. 103(d).

      4. Finally, as Sevilla concedes, her claim regarding the divisibility of Cal.

Health & Safety Code § 11378 is foreclosed by existing precedent. See, e.g.,

Padilla-Martinez v. Holder, 770 F.3d 825, 831 n.3 (9th Cir. 2014).

      The judgment of conviction is AFFIRMED. This matter is REMANDED

to the district court with directions to correct the clerical error in the judgment and

probation commitment order (District Court Dkt. No. 117), which incorrectly

checked the box following the “plea” as “guilty,” rather than a “not guilty” plea

and a conviction following a jury trial.




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