                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 09 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50349

              Plaintiff - Appellee,              D.C. No. 3:11-cr-02838-LAB-1

  v.
                                                 MEMORANDUM *
JORGE MARISCAL,

              Defendant - Appellant.



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

                            Submitted August 6, 2012 **
                               Pasadena, California

Before: REINHARDT, SILVERMAN, and NGUYEN, Circuit Judges.

       Following a bench trial, Appellant Jorge Mariscal (“Mariscal”) was

convicted of violating 8 U.S.C. § 1326(a), which prohibits an alien from illegally

reentering the United States after he previously left the country while an order of


        *
             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).
removal was outstanding. On appeal, Mariscal argues that the government failed

to sufficiently prove his prior physical departure.

      Where a party on appeal challenges the sufficiency of the evidence, we view

the evidence “in the light most favorable to the prosecution,” and then determine

whether “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Carranza, 289 F.3d 634,

641–42 (9th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

      Appellant relies heavily on United States v. Arias-Ordonez, 597 F.3d 972,

978 (9th Cir. 2009), where we held that if the government seeks to rely on a notice

of reinstatement to remove an alien, the defendant must have an opportunity to

challenge the underlying order of removal. Here, however, Mariscal does not

dispute the validity of the underlying 2007 Order of Removal. Therefore, we need

not determine whether the 2010 Notice of Reinstatement was valid.

      Similarly, Mariscal does not dispute the validity of the 2010 Warrant of

Removal, dated September 8, 2010, which contains Mariscal’s fingerprints and the

sworn statement of an immigration officer stating that he removed Mariscal to

Mexico “on foot” that day. Therefore, the district court properly found that the

government sufficiently proved Mariscal’s physical departure beyond a reasonable

doubt. See United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2006)


                                           2
(warrant of removal “sufficient alone to support a finding of removal beyond a

reasonable doubt”) (emphasis added) (citing United States v. Bahena-Cardenas,

411 F.3d 1067, 1075 (9th Cir. 2005) (warrant of removal “provided sufficient

evidence of physical removal”)).

      AFFIRMED.




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