NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. HUGO LOPEZ

- MARZARIEGOS, AKA Hugo Leonel Mazariegos, AKA Hugo Lionel Lopez

- Mazariegos, AKA Hugo Lionel Lopez, AKA Hugo Leo Lopez, AKA Hugo Lopez, AKA Hugo Leonel Lopez,

Defendant

- Appellant. No. 23

- 875 D.C. No. 2:22

- cr - 00329

- RGK

- 1
MEMORANDUM *

Appeal from the United States District Court for the Central District of California R. Gary Klausner , District Judge , Presiding Submitted May 16, 2024 ** Pasadena , California Before: N.R. SMITH and MENDOZA, Circuit Judges, and HINDERAKER, District Judge

. ***

* 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 John Charles Hinderaker , United States District Judge for the District of Arizona , sitting by designation. 

# FILED

MAY 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 23

- 875

Hugo Lopez

- Marzariegos, a citizen of Guatemala, was convicted of one count of being found in the United States without permission following deportation under 8 U.S.C. §§ 1326(a) , (b)(2). He appeals his sentence, conviction, and the district court’s denial of his motion to dismiss the indictment. We have jurisdiction under 18 U.S.C. § 3742(a), and we affirm.
1. Reviewing de novo, United States v. Marguet

- Pillado , 560 F.3d 1078, 1081 (9th Cir. 2009), the district court correctly relied on United States v. Rizo

- Rizo , 16 F.4th 1292 (9th Cir. 2021) , and Pena

- Cabanillas v. United States , 394 F.2d 785 (9th Cir. 1968) , to deny Lopez

- Marzariegos’s motion to dismiss. We have long recognized that “found in” illegal reentry under 8 U.S.C. § 1326 does not require specific knowledge of deportation or citizenship status

. See, e.g. , Rizo

- Rizo , 16 F.4th at 1295

– 96 ; see also Unite d States v. Vazquez

- Hernandez , 849 F.3d 1219, 1226 (9th Cir. 2017)

. Contrary to Lopez

- Marzariegos ’s assertions otherwise, these

cases are not clearly irreconcilable with the Supreme Court’s decision in Rehaif v. United States , 139 S. Ct. 2191 (2019)

. Rehaif involved a different statute with an explicit mens rea term and was primarily concerned with criminalizing innocent conduct. See id. at 2196 . Here, entering the United States without complying with immigration procedures was not otherwise innocent conduct, whether or not Lopez

- Marzariegos understood his status

. 2. T he district court did not err by administering the wrong oath to certain3 23

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witnesses

. Lopez

- Marzariegos failed to object to this error , so we review for plain

error. See United States v. Cazares , 788 F.3d 956, 976 (9th Cir. 2015) ; see also Fed. R. Crim. P. 52(b)

. Lopez

- Marzariegos fails to demonstrate that it “affect ed the outcome of the

... proceedings.” United States v. Lopez , 762 F.3d 852, 863 (9th Cir. 2014). Lopez

- Marzariegos chose not to cross

- examine any witness at trial, does not contest his guilt on appeal, does not identify any unreliable testimony in the record , a

nd t he evidence against him at trial was overwhelming. Nor does Lopez

- Marzariegos explain how this error amounted to a structural one , which is “relatively rare and consist [s] of serious violations that taint the entire trial process, thereby rendering appellate review of the magnitude of the harm suffered by the defendant virtually impossible.” United States v. Chavez

- Cuevas , 862 F.3d 729, 734 (9th Cir. 2017) (quoting Eslaminia v. White , 136 F.3d 1234, 1237 n.1 (9th Cir. 1998)) . Here, the witnesses were sworn with an oath that could reasonably, if imperfectly, impress their duty to testify truthfully.
3. T he district court did not clearly err , United States v. Ramos

- Medina , 706 F.3d 932, 936 (9th Cir. 2013), by denying Lopez

- Marzariegos a downward departure for acceptance of responsibility. T he district court based its denial primarily on its view that defendant was unwilling to accept responsibility “through the entire case.” Lopez

- Marzariegos’s testimony and sentencing statement show that he did not accept responsibility at least for the 2016 conviction4 23

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that supported his charge under § 1326 (b)(2) ; he contested the evidence undergirding his present conviction; and he testified that he felt compelled to reenter the United States, despite knowing it was unlawful

. Given that the district court “based its decision on ‘the facts of this case and on this particular record’ as a whole , ” id. at 934, we cannot conclude that it clearly erred.

AFFIRMED.