                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 12 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50256

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-02375-LAB-1
 v.

MAURICIO LARA-BONILLA,                          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 June 12, 2019
                              Pasadena, California

Before: FERNANDEZ, WARDLAW, and BYBEE, Circuit Judges.

      Mauricio Lara-Bonilla appeals his jury convictions for illegal entry and

reentry, in violation of 8 U.S.C. §§ 1325 and 1326. Lara-Bonilla asserts that the

district court improperly denied his challenge under Batson v. Kentucky, 476 U.S.

79 (1986), in response to the prosecution’s peremptory strike of potential juror J.F.,




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the only Latino male on the panel. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We affirm.

      The district court properly applied the third step of the Batson framework,

where the court “must determine whether the prosecutor’s stated [race-neutral]

reasons [for its peremptory strikes] were the actual reasons or instead were a

pretext for discrimination.” Flowers v. Mississippi, 139 S. Ct. 2228, 2241 (2019).

“This analysis ‘turns largely on the court’s evaluation of the prosecutor’s

credibility,’” and the court “must evaluate the record and consider each

explanation within the context of the trial as a whole.” Murray v. Schriro, 745

F.3d 984, 1003–04 (9th Cir. 2014). Here, the prosecutor explained in the original

Batson hearing that she struck juror J.F. because (1) he was an engineer, and (2)

his partner was an immigrant who had recently naturalized. At the second Batson

hearing, the prosecutor added that she struck J.F. because (3) he had no prior jury

experience.

      The district court properly considered each of the prosecution’s proffered

reasons, including the prosecution’s immigrant-partner explanation. Contrary to

Lara-Bonilla’s arguments, the record demonstrates that the court considered “the

fact that [J.F.] had a partner who was a citizen who had gone through the legal

immigration process.” Record evidence also vitiates Lara-Bonilla’s argument that

the district court “dismissed . . . altogether” defense counsel’s point that the


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prosecution failed to object to the court’s for-cause dismissal of another Latino

juror, V.D. The district court considered Lara-Bonilla’s argument concerning

V.D., whom Lara-Bonilla also agreed to strike, and it did not clearly err in

determining that the prosecution’s failure to object evidenced no discrimination

against J.F.

      Furthermore, it was not improper for the district court to consider the

number of peremptory strikes the prosecution had available as part of the court’s

analysis of the prosecution’s engineer explanation because the court is required to

engage in a “sensitive inquiry into such circumstantial . . . evidence of intent as

may be available.” United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir.

2015).

      We reject Lara-Bonilla’s argument that the district court improperly

accepted and credited the prosecution’s lack-of-jury-experience explanation, which

it offered at the second Batson hearing. Lara-Bonilla conceded that the court could

consider this explanation, and our precedent permits the district court to credit the

prosecution’s post-hoc explanation. See Crittenden v. Ayers, 624 F.3d 943, 958

(9th Cir. 2010). Nor was it clear error for the district court to accept the lack-of-

jury-experience explanation as sincere. Unlike in Miller-El v. Dretke, 545 U.S.

231, 245–46 (2005), the prosecution did not offer this new reason to replace

previously proffered explanations. Instead, it offered the reason as part of its


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response to the court’s question as to why the prosecution did not strike all

engineers.

      AFFIRMED.




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