                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                             OCT 13 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                         No. 10-50406

              Plaintiff - Appellee,               D.C. No. 3:09-cr-04150-JM

  v.
                                                  MEMORANDUM *
JOSE CANO-MEDINA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Jeffrey T. Miller, District Judge, Presiding

                     Argued and Submitted September 2, 2011
                              Pasadena, California

Before: SCHROEDER and GOULD, Circuit Judges, and MCCUSKEY, Chief
District Judge.**

       Appellant Jose Cano-Medina appeals from his conviction, following a jury

trial, of attempted entry after deportation in violation of 8 U.S.C. § 1326(a) and (b).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
       **
             The Honorable Michael Patrick McCuskey, Chief District Judge for
the U.S. District Court for Central Illinois, Urbana, sitting by designation.
We have jurisdiction under 28 U.S.C. §§ 1291, 1294(1), and we affirm the district

court's judgment.

      Cano-Medina argues that the district court erred by refusing to instruct the

jury regarding the difference between the burdens of proof in immigration and

criminal proceedings, contending that the instruction was necessary because it was

a correct statement of the law and was supported by the evidence at trial. The

district court declined to give the instruction proposed by Cano-Medina, finding

that it was not necessary or appropriate under the circumstances of this case. The

district court did not err. The record shows that the district court, as well as

counsel for both sides, properly explained the burden of proof for a criminal trial.

See United States v. Marin-Cuevas, 147 F.3d 889, 893–94 (9th Cir. 1998) (finding

that the jury was properly instructed even though the judge did not give an

instruction which compared and contrasted the burden of proof in criminal trials

with that in immigration proceedings).

      Cano-Medina also argues that the district court gave a defective jury

instruction on reasonable doubt. The test is whether, taken as a whole, the

instructions correctly convey the concept of reasonable doubt to the jury. Victor v.

Nebraska, 511 U.S. 1, 5 (1994). The district court properly instructed the jury

using the Ninth Circuit model jury instruction. See id. at 17–21 (rejecting

challenges to instructions which included similar language).
      Finally, as Cano-Medina recognized, his argument regarding the admission

into evidence of the warrant of removal is foreclosed by United States v. Orozco-

Acosta, 607 F.3d 1156, 1163–64 (9th Cir. 2010) (holding that the admission of the

warrant of removal into evidence did not violate the Sixth Amendment).

      AFFIRMED.
