                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                                 Elisabeth A. Shumaker
Clerk                                                                                  Chief Deputy Clerk

                                                June 18, 1997



        TO:      All recipients of the captioned order and judgment

        RE:      96-1248, USA v. Rodriguez-Munguia
                 June 17, 1997


                 Please be advised of the following correction to the captioned decision:

             The lower court case number in the caption is incomplete. The correct number is:
        95-CR-464-AJ. Please make the correction.

                                                           Very truly yours,

                                                           Patrick Fisher, Clerk



                                                           Susie Tidwell
                                                           Deputy Clerk
                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                  JUN 17 1997
                               FOR THE TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                         Case No. 96-1248
                                                        (D.C. No. 95-CR-464-AJ)
 v.                                                            (Dist.N.M.)

 EFRAIN RODRIGUEZ-MUNGUIA,

               Defendant-Appellant.




                               ORDER AND JUDGMENT*


Before PORFILIO, EBEL, and HENRY, Circuit Judges.



       Defendant-appellant Efrain Rodriguez-Munguia challenges the sufficiency of the

evidence supporting his conviction for illegal reentry after deportation, a violation of 8

U.S.C. § 1326(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1


       *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
       1
             After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
                                   I. BACKGROUND

       Because Mr. Rodriguez-Munguia has challenged the sufficiency of the evidence,

we view the record in the light most favorable to the government. See United States v.

Chavez-Palacios, 30 F.3d 1290, 1293-94 (10th Cir. 1994). Viewed in this light, the

record indicates that Mr. Rodriguez-Munguia is a Mexican citizen who was convicted of

possession of heroin for sale in a California state court in May 1990. Following this

conviction, the Immigration and Naturalization Service (INS) initiated deportation

proceedings against him.

       In May 1990, the INS issued an Order to Show Cause, Notice of Hearing, and

Warrant for Arrest of Alien (“order to show cause”) charging Mr. Rodriguez-Munguia

with violating § 241(a)(11), of the Immigration and Nationality Act, 8 U.S.C. §

1251(a)(11) and directing him to appear for a hearing before an immigration judge.2 At

trial, INS Special Agent Michael J. Desmond testified that he arrested Mr. Rodriguez-

Munguia and served him with a notice of rights warning advising him of his rights to a

deportation hearing and representation by counsel and his opportunity for voluntary

departure.

       Both the order to show cause and the notice of rights warning were admitted into

evidence. See Aple’s Br. doc. 3 and 4. The notice of rights warning requested Mr.


       2
              When the order to show cause was issued, § 241(a)(11), 8 U.S.C. §
1251(a)(11) subjected aliens convicted of various drug offenses to deportation. Section
241(a)(11) is now codified as amended as 8 U.S.C. § 1251(a) (2) (B) (i ) (1990).

                                            2
Rodriguez-Munguia to choose between voluntary departure and a hearing before an

immigration judge to determine whether he was subject to deportation. Mr. Rodriguez-

Munguia chose the former, signing his name underneath the following statement: “I

admit that I am in the United States illegally. I wish to give up my right to a hearing

before an Immigration Judge and return to my home country on the first available

transportation. I understand that I may be held in detention until my departure.” Id. doc.

4.3 Mr. Rodriguez-Munguia signed this document in the presence of Agent Desmond and

another INS agent.

       On May 21, 1990, an INS Immigration Judge entered an order of deportation

regarding Mr. Rodriguez-Munguia. The order stated, “[U]pon the basis of respondent’s

admissions I have determined that he is deportable on the charge(s) in the Order to Show

Cause. Respondent has made no application for relief from deportation . . . . It is ordered

that respondent be deported from the United States to Mexico.” Id. doc. 5.

       On the same day, the INS issued a warning notification explaining the effect of the

order of deportation. See id. doc. 6. The warning notification stated that if Mr.

Rodriguez-Munguia wished to return to the United States, he should write the INS or

American Consular Office nearest his residence abroad and ask how to obtain permission.

It further stated that any deported person who returned to the United States without



       3
           The notice of rights warning was set forth in English and Spanish. Mr.
Rodriguez-Munguia signed under the Spanish version.

                                             3
permission was guilty of a felony. The warning notification was signed by Mr.

Rodriguez-Munguia and INS detention enforcement officer Christopher Smith. Officer

Smith testified at trial, explaining the form, identifying his signature, and stating that the

form indicated that he had personally served it on Mr. Rodriguez-Munguia. See Rec. vol.

II at 78-83.

       At trial, the government also presented evidence regarding Mr. Rodriguez-

Munguia’s alleged deportation. The government introduced a warrant for deportation,

signed by INS Border Patrol Officer David Picazo. The warrant stated that Mr.

Rodriguez-Munguia was deported from the United States at Calexico, California on May

22, 1990 and that Officer Picazo witnessed Mr. Rodriguez-Munguia’s departure. It also

contained a right thumb print and the signature “Efrain Rodriguez” over the line

“signature of person fingerprinted.” See Aple’s Br. doc. 7.

       Officer Picazo testified regarding INS deportation procedures. Although he

acknowledged that he had no independent recollection of Mr. Rodriguez-Munguia’s

deportation, he explained his routine practices at the time. He stated that after the

completion of INS deportation procedures, aliens were held at the El Centro Federal

Processing Center. Prior to deportation, Officer Picazo said, he would verify each alien’s

identity with a picture from his or her INS file and take a thumb print. According to

Officer Picazo, individuals who were subject to deportation were then transported to the




                                               4
Mexican border by bus, “and then we open a secure gate and they walk across into

Mexico.” Rec. vol. II at 87.

       On cross-examination, Officer Picazo stated that he “completed” the warrant for

deportation for Mr. Rodriguez-Munguia at the El Centro, Processing Center, which is

fourteen miles from the Mexican border. See id. at 90. However, on redirect

examination, he explained that it was his practice to actually witness individuals subject

to deportation “walk across the border.” Id.

       In July 1995, the INS discovered Mr. Rodriguez-Munguia in the custody of the

Colorado Department of Corrections, where he was serving a sentence for violating

probation in a felony menacing case.4 The government offered into evidence an INS

form, a Certification of Nonexistence of Record, indicating that INS records contained

“no evidence of the filing of an application for permission to reapply for admission to the

United States after deportation, or the granting of such permission, relating to Efrain

Rodriguez-Munguia.” Aple’s Br. doc. 10. The government then presented an expert in

the comparison of fingerprints. The expert testified that the fingerprint exemplars taken

from Mr. Rodriguez-Munguia in 1995 matched the thumb print on the May 22, 1990




       4
              In Colorado, “[a] person commits the crime of menacing if, by any threat or
physical action, he knowingly places or attempts to place another person in fear of
imminent serious bodily injury.” Col. Rev. Stat. § 18-3-206 (1990). Menacing
committed by the use of a deadly weapon is a felony. Id.

                                               5
warrant of deportation for Mr. Rodriguez-Munguia identified by Officer Picazo. See Rec.

vol II at 92-99; Aple’s Br. doc. 8.

       At the close of the government’s case, Mr. Rodriguez-Munguia moved for a

judgment of acquittal. The district court denied the motion and submitted the case to the

jury, which convicted Mr. Rodriguez-Munguia of violating 8 U.S.C. § 1326(a) by re-

entering the United States illegally after deportation.5 The district court sentenced Mr.

Rodriguez-Munguia to sixty- three months’ imprisonment followed by three years’

supervised release.



                                      II. DISCUSSION

       On appeal, Mr. Rodriguez-Munguia contends that there was insufficient evidence

to support his conviction. As noted, in assessing a challenge to the sufficiency of the

evidence, “we view the evidence in the light most favorable to the government in order to


       5
              The indictment against Mr. Rodriguez-Munguia actually charged him with
violating 8 U.S.C. § 1326(a) and (b)(2). Section 1326(b)(2) authorizes longer sentences
for aliens who re-enter the United States after having been convicted of aggravated
felonies. The government alleged that Mr. Rodriguez-Mungia’s 1990 California
conviction constituted an aggravated felony.
              Prior to trial, Mr. Rodriguez-Munguia filed a motion to strike surplusage
from the indictment, arguing that the California felony conviction was not an element of
the alleged offense. Instead, he said, the felony conviction was a sentencing factor that
could not be considered by the jury. The district court agreed. It excluded evidence of
the felony conviction from presentation to the jury.
              This court has recently adopted the same analysis, holding that 8 U.S.C. §
1326(b)(2) “is a sentencing enhancement provision rather than a separate offense.” See
United States v. Valdez, 103 F.3d 95, 98 (10th Cir. 1996).

                                              6
determine whether all the evidence, both direct and circumstantial, together with all the

reasonable inferences to be drawn therefrom, ‘convinces us that a rational fact finder

could reasonably have found’ the appellant guilty of the crime charged beyond a

reasonable doubt.” Chavez-Palacios, 30 F.3d at 1293-94 (quoting Jackson v. Virginia,

443 U.S. 307, 324 (1979)).

       In order to establish a violation of 8 U.S.C. § 1326(a), the government must

establish the following elements beyond a reasonable doubt: (1) that the defendant is an

alien; (2) that the defendant was arrested and deported; (3) that the defendant voluntarily

reentered, attempted to reenter, or was found in the United States; and (4) that the reentry

was without the permission of the Attorney General. See United States v. Meraz-Valeta,

26 F.3d 992, 997 (10th Cir. 1994). In challenging the sufficiency of the evidence

supporting his conviction, Mr. Rodriguez-Munguia focuses on the first two elements,

contending that the evidence does not establish either alienage or deportation.

                                       A. Alienage

       With regard to alienage, Mr. Rodriguez-Munguia invokes the Ninth Circuit’s

decision in United States v. Meza-Soria, 935 F.2d 166 (9th Cir. 1991). There, the Ninth

Circuit held that a determination in an INS proceeding that an individual is an alien does

not conclusively establish that fact in a criminal proceeding. The Ninth Circuit based this

holding on the different burdens of proof placed on the government in the two

proceedings--by clear and convincing evidence in deportation proceedings and beyond a


                                             7
reasonable doubt in criminal matters. Thus, the court said, the defendant in a criminal

proceeding in which alienage is an issue may collaterally attack a finding of alienage in

an administrative proceeding.

     Meza-Soria is distinguishable from the instant case. Here, the INS does not rely

solely on a finding by an immigration judge to establish that Mr. Rodriguez-Munguia is

an alien. Instead, the INS points to Mr. Rodriguez-Munguia’s own admission of alienage

in the notice of rights warning. See Aple’s Br. doc. 4. That admission is sufficient for a

rational fact finder to conclude beyond a reasonable doubt that Mr. Rodriguez-Munguia is

an alien.

                                     B. Deportation

       As to deportation, Mr. Rodriguez Munguia focuses on Agent Picazo’s admission

that he had no independent recollection of his leaving the United States in May 1990. Mr.

Rodriguez-Munguia also notes that Agent Picazo admitted that he “completed” the

warrant for deportation at the El Centro Processing Center, fourteen miles from the

Mexican border. See Rec. vol. II at 90. Accordingly, Mr. Rodriguez-Munguia contends,

“[I]t cannot be reasonably said that substantial evidence of deportation was presented.”

Aplt’s Br. at 11.

       We are not persuaded by this argument. As the government has noted, Agent

Picazo also testified that it was his habit and routine to accompany deportable individuals

on a bus from the El Centro Processing Center to the Mexican border and to “see them


                                             8
walk across the border.” Rec. vol. II at 90. The jury could reasonably rely on this

testimony to conclude beyond a reasonable doubt that Agent Picazo complied with this

practice on this occasion and that Mr. Rodriguez-Munguia left the United States and

entered into Mexico in May 1990. See Fed. R. Evid. 406 (providing that “[e]vidence of

the habit of a person or the routine practice of an organization . . . is relevant to prove that

the conduct of the person or the practice of the organization on a particular occasion was

in conformity with the habit or routine practice”); Perrin v. Anderson, 784 F.2d 1040,

1046 (10th Cir. 1986) (affirming district court’s admission of habit evidence under Fed.

R. Evid. 406)); Meyer v. United States, 638 F.2d 155, 156-57 (10th Cir. 1980) (same).

Accordingly, just as with the element of alienage, we conclude that the evidence

introduced at trial is sufficient to support the element of deportation.



                                     III. CONCLUSION

       We therefore AFFIRM Mr. Rodriguez-Munguia’s conviction for violation of 8

U.S.C. § 1326(a).

       The mandate shall issue forthwith.

                                                   Entered for the Court,

                                                   Robert H. Henry
                                                   Circuit Judge




                                               9
