                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10471

                Plaintiff-Appellee,             D.C. No.
                                                2:15-cr-01557-DLR-1
 v.

MARCO SALOMON-MACIAS,                           MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Douglas L. Rayes, District Judge, Presiding

                          Submitted December 7, 2017**
                            San Francisco, California

Before: LUCERO,*** RAWLINSON, and OWENS, Circuit Judges.

      Marco Salomon-Macias appeals from his jury conviction for attempted

reentry of a removed alien in violation of 8 U.S.C. § 1326. As the parties are



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
familiar with the facts, we do not recount them here. We affirm.

      Salomon-Macias argues that there was insufficient evidence that he had the

specific intent to enter the country “free from official restraint” because he jumped

a border fence with the intent to be taken into custody. United States v. Lombera-

Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005) (holding that it is not “possible to

convict a previously deported alien for attempted illegal reentry . . . when he

crosses the border with the intent only to be imprisoned” because “attempted

illegal reentry is a specific intent crime that requires proof of intent to enter the

country free from official restraint”). However, viewing the evidence in the light

most favorable to the government, a rational jury could have found that Salomon-

Macias did not cross the border with the sole intent to be taken into custody. The

instant case differs from Lombera-Valdovinos, which “present[ed] a rare set of

factual circumstances where there is no evidence of anything other than the intent

to be taken into custody.” Id. at 930 n.3. Salomon-Macias’ reliance on United

States v. Argueta-Rosales, 819 F.3d 1149, 1156-57 (9th Cir. 2016), is also

misplaced. In Argueta-Rosales, we reviewed whether the district court’s legal

error was harmless, rather than for sufficiency of the evidence, and noted that

where “there is contradictory evidence regarding the defendant’s intent, it is for the

trier of fact to determine whether the government has proven unlawful intent

beyond a reasonable doubt.” Id. at 1157.


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      Similarly, contrary to Salomon-Macias’ contention, viewing the evidence in

the light most favorable to the government, a rational jury could have found that

Salomon-Macias did not have a reasonable mistaken belief that he was a U.S.

citizen. Cf. United States v. Smith-Baltiher, 424 F.3d 913, 923-25 (9th Cir. 2005)

(holding that a defendant’s reasonable mistaken belief that he is a U.S. citizen, and

therefore does not need the Attorney General’s permission before attempting

reentry, is a defense to the specific intent crime of attempted illegal reentry).

      Further, to the extent Salomon-Macias raises the district court’s failure to

instruct the jury regarding a reasonable mistaken belief of citizenship defense,

reversal is not warranted on this basis. The district court did not abuse its

discretion in determining that there was an inadequate factual basis for the

instruction, and Salomon-Macias’ trial counsel conceded that an instruction was

unnecessary because he was not raising such a defense. See United States v.

Daane, 475 F.3d 1114, 1119 (9th Cir. 2007) (stating that this court reviews for an

abuse of discretion the denial of a defendant’s jury instruction due to an inadequate

factual basis).

      The district court properly denied Salomon-Macias’ motion to suppress his

statements because the court did not clearly err in finding that the over ten-hour

period between Salomon-Macias’ arrest and interview was reasonable as the delay

was caused by his need for medical treatment at a hospital. See United States v.


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Matus-Leva, 311 F.3d 1214, 1217 (9th Cir. 2002) (holding that the district court

properly denied a motion to suppress because the pre-arraignment delay was

reasonable under the circumstances, which included providing the defendant with

medical treatment).

      Finally, Salomon-Macias argues that he was prejudiced and did not receive a

fair trial because in rebuttal closing argument the prosecutor misstated the law.

However, any error was harmless. See United States v. McWilliams, 730 F.2d

1218, 1222 n.3 (9th Cir. 1984) (per curiam) (holding that harmless, rather than

plain, error standard of review applies where counsel fails to object but the “trial

judge recognizes error and acts on his or her own initiative to correct the error”).

Any risk of prejudice was mitigated by the district court’s sua sponte curative

instruction, which immediately followed and was focused upon the allegedly

improper remarks. See United States v. Barragan, 871 F.3d 689, 709 (9th Cir.

2017) (“A curative instruction can neutralize the harm of a prosecutor’s improper

statements if it is given immediately after the damage [is] done and mentions the

specific statements.” (citation and internal quotation marks omitted)). Moreover,

before closing argument, the district court properly instructed the jury, and the

prosecutor correctly stated the law in her initial closing argument. See United

States v. Begay, 673 F.3d 1038, 1046-47 (9th Cir. 2011) (en banc).

      AFFIRMED.


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