                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 09 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10119

              Plaintiff-Appellee,                D.C. No.
                                                 4:16-cr-00165-JGZ-LAB-1
 v.

RICARDO MORENO-HERNANDEZ,                        MEMORANDUM*
AKA Ricardo Moreno Hernandez,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                           Submitted February 7, 2018**
                             San Francisco, California

Before: THOMAS, Chief Judge, and TASHIMA and CHRISTEN, Circuit Judges.

      Ricardo Moreno-Hernandez appeals his jury conviction for violating

8 U.S.C. § 1326. We have jurisdiction over this appeal, 28 U.S.C. § 1291, and

affirm.

      *
             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 district court did not abuse its discretion in denying Moreno-

Hernandez’s motion for a new trial on the grounds of his excluded prior consistent

hearsay statement to Immigration & Customs Enforcement officials in September

2015 that he was born in Santa Monica, California. The district court correctly

identified Federal Rule of Evidence 801(d)(1)(B) and the four-element test from

United States v. Collicott, 92 F.3d 973, 979 (9th Cir.), as amended (Oct. 21, 1996),

that guide the admission of prior consistent hearsay statements. The district court’s

application of this Rule to Moreno-Hernandez’s prior consistent hearsay statement

is not implausible or illogical. United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009) (en banc).

      The prosecution’s inadvertent misstatement does not rise to the level of

prosecutorial misconduct, and does not constitute plain error. See, e.g., United

States v. Lloyd, 807 F.3d 1128, 1168 (9th Cir. 2015) (“A prosecutor’s inadvertent

mistakes or misstatements are not misconduct.”).

      For these reasons, Moreno-Hernandez is not entitled to a new trial.

      AFFIRMED.




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