NOT FOR PUBLICATION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 APPEALS
2 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 United 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. The district court did not err by administering the wrong oath to certain 
3 23-875

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 “affected 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, and the 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. The 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. The 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 conviction 
4 23-875

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.